
Book . r\i 



THE 
AMERICAN FEDERAL STATE 



^^^y^ 



^,9-j2-a..« 



THE 

AMERICAN FEDERAL STATE 

A TEXT-BOOK IN CIVICS 

FOR 

HIGH SCHOOLS AND ACADEMIES 

BY 

ROSCOE LEWIS ASHLEY, A.M. 



THE MACMILLAN COMPANY 

LONDON: MACMILLAN AND CO., Ltd. 
1902 

All rigktt reset-t'td 



-S^'k. 



THP LIBRARY ©F 

©OMGrESS, 
Twc Cofiee fiECErvEe 

FEB. 15 ^902 

Of^r^wrOMT ENTRY 

CLASS *- XXa Wo. 

e©PY a . 



Copyright, igoa, 
By the MACMILLAN COMPANY. 



NoTtnoaD Iprcss 

J. S. Gushing tc Co. - Berwick & Smith 
Norwood Masa. U.S.A. 



d 

4 



PREFACE 



This Civics text-book is intended not only to describe 
the organization and work of tlie different American govern- 
ments, but to make prominent the relation of the citizens 
to the governments and to each other. It has been thought 
that this could be done best by considering the subject from 
the standpoint of the State : that is, of the whole body of 
citizens considered as an organized unit rather than from 
the point of view of government or of the individual citizen. 
This made it necessary, first, to explain some of the more 
important principles of political science with practical appli- 
cations ; second, to show how the American Federal State 
became what it is; third, to describe the national, state 
(commonwealth), and local governments; and, fourth, to 
give some idea of the policies of the State in regard to great 
public questions and of the problems that confront it. 

In the historical portions of the book no attempt has 
been made to touch upon more than the sahent events, 
each of which is considered not so much for any intrinsic 
worth as for the hght that it may throw upon the develop- 
ment of nationality within the United States. For details 
and for subjects omitted altogether, the reader must be 
referred to the many excellent manuals of American His- 
tory. The discussions upon government assume, that the 
student needs a clear conception of the real character and 
actual working of our governments much more than he 
does a knowledge of the government as it is supposed to 
be. Technical descriptions of governmental machinery 
have, therefore, been subordinated to practical accounts of 
what the governments do and how they do it ; and, for the 



vi Prtfaet 

siuno toason. thf methods of administration have been given 
U\ss s|\\rf (li.in t]\e purposes which administrative measures 
li.ivo svnigtM to .itt.iin. Where rccogni.-od tlofoots exist which 
can iuui o\ii;l\t lo bo u-nu\lu\l thu>ni;h .m .iw.ikoned piiMvc 
interest, the authv^ has not hesitated to call attention to 
them, noting the natnu' of the tlaw, and mentioning ways 
in which it may he removed. 

Although no utVu-n^cs h.i\ e Iven given in the form of 
fi.xUnotes, the .lutlun iIcmk-s to expu-ss his obligation to a 
long list of writei^. to who\n lu- is uulcbtcd tvH suggestions 
or material. Kor the comments upon ditVeient Ivoks placed 
imder ** general irferences " at the beginning of each chap- 
ter, he assumes sole n*siHM\sibility ; the comments, however, 
are to be taket\, not as iuvlicating his estimate of the value 
of the bov>ks. but as showing tl\e nset'ulness of the selections 
\\\ connection >\ith the succeeding ch.ipter. 

Tlu' authors tlianks ate especially due to Pr. Robert H. 
Whitten, of the New VvMk State Library, and to Mr. l^vut O. 
Kinnev. Head of the lli>toiv Peiv\rtmei\t of the Ix>s Angeles 
High School, tbv leading pottions of the manuscript or 
inxH>t. 



SUGGESTIONS 



MATERIALS 

As this manual covers so much more ground than the Chapters de- 
conventional civics text-book, and in consequence contains *!^";'* "^' 
more material than some teachers desire or are able to use, government, 
many may prefer to confine themselves as far as possible to 
the chapters devoted especially to government. To such 
teachers, and those who, because the time allotted to Civics 
is less than one year, must omit parts of the book, the 
author would suggest that chapters 1 to V inclusive be fol- 
lowed directly by Part II and chapters XXII and XXIII. 
It may also be ailvisable for a few teachers to omit tlie more 
difficult sections within these chapters, although the value 
of general or theoretical discussions before classes take up 
the study of a subject in detail is not to be lightly estimated 
if time is not too limited or the pupils too immature. 

The use of materials for work outside of the text-book Compurative 

has fortunately become much more general than a few years *^**'^<^"y of 

t • • . I • . . • 1 1 miUerinU in 

smce ; but it is probably true that there has been less prog- civics. 

ress in this particular in civics than in American history. 
Less attention has been paid to collecting documents and 
sources which would tlirow light upon .American government 
to-day than has been devoted to placing in compact form a 
few of the most useful original sources of history. There 
are, nevertheless, a great many papers and pamphlets ob- 
tained at slight cost which alTord ample opportunities to 
study certain phases of the organization or work of govern- 
ment at first hand. The books ilevoted to a study of 
political anil civil institutions are by no means so numerous 



Vlll 



Stf£-j^i'sfions 



Constitu- 
tions, codes, 
ami chartoi's. 



Registers of 
ofticials. 



Statistical 
reports. 



as the political, constitutional, and narrative histories of the 
United States, but a few are of exceptional merit, and a 
valuable civics library can tlierefore be obtained for a mod- 
erate sum. 

ICvery chiss should be provided with several copies of the 
state constitution, and if possible every member should have 
one in his possession for constant reference. Most of the 
states publish in pamphlet form copies of the constitution, 
which can be obtained for class room use ^•rafis or at a 
reasonable cost. At least one copy of the state political 
code which gives an extended account of the state and local 
governments should be easily accessible, provided of course 
the laws of the state have been codified. If the class be- 
longs to a city high school, it will be desirable to have for 
individual and class use a number of copies of the city 
charter. 

The Otlicial Congressional Directory, issued yearly under 
the direction of the clerk of the printing records, will be 
sent upon ap]^lioation. and is particularly usetul for the brief 
biographies of members of Congress and the summaries 
of the duties performed by the difterent bureaus of the 
executive departments. Registers of state officials with 
information relative to public institutions are issued in a 
majority of the states, and can usually be obtained through 
the representatives of the senatorial or assembly district. 
Reports of national or state bureaus and commissions are 
usually published annually, and may be oi' use in the study 
of some special subject. 

Statistical information of value can be procured from the 
jMoper otVicials. For example, reports of the state con- 
troller, of the county clerk or auditor, of the city auditor or 
treasurer, are published at frequent intervals and give infor- 
mation regarding the assessment of property, the tax rate, 
receipts and expenditures summarized and in detail. Sev- 
eral copies of each can probably be obtained without diffi- 
culty. Comparative tables showing the financial statistics 
of the ditTeient states tor iSoo. 1S05, '^'^^^ 1900 are pub- 



Suggestions xf- 

lished by the New York State Library for ten cents a num- 
ber. Similar statistics for the largest cities are gathered by 
the United States Department of Labor and incorporated in 
their bulletins, e.g. that for September, 1900. Information 
concerning the finances of the national government, the 
amount of trade, election figures, besides reviews of legisla- 
tion for the previous year, party platforms, lists of national 
officials past and present, and a multitude of other subjects 
are contained in the political almanacs issued yearly for 
twenty-five cents a number by different newspapers. A 
copy of at least one for the current year is indispen- 
sable. 

Class-room work can be made to seem more real by Sample bal- 

placing in the hands of each pupil papers in whose use he '°'* '^"^ , 
.... . assessors' 

IS likely to be especially interested. It is easy to get from "statements." 

the city or county clerk samples of unused but cancelled 
ballots for some previous election. The tax assessors are 
almost always more than willing to furnish teachers with a 
suitable number of the " statements " which assessable citi- 
zens are obliged to fill out and return each year, while 
blanks upon which the collectors make out their receipts 
are readily furnished by those officials. Blank indentures, 
mortgages, warrants, and other legal papers are obtainable 
at the book stores or from lawyers at but slight expense. 

If the pupils have access to a fairly large library, a great References 
deal of material will be found not only in the books which ^° materials. 
are named later, but in other books and in periodicals. 
Pupils should be given instruction in using periodical in- 
dexes and such bibliographies as may be obtainable. Most 
of the latter, however, like Mace's Manual of American 
History, the bibliographical notes in Winsor's Narrative 
and Critical History of America and in Channing and 
Hart's invaluable Guide to the Study of American History 
are historical and only indirectly touch upon government, 
the bibliography of which has been neglected. For the 
study of topics in particular books, the attention of the 
pupils should be constantly recalled to all time-saving de- 



X Suggestions 

vices, such as the use of the table of contents and of the 

indexes. 

Essentials In addition to this material which costs little, or of which 

for a school jj j^as Only the use, every class should have at least a small 
library. , . , , , 

library to which it has access during study and recitation 

hours. Even when a large public Ubrary is within reach, 
one for a school is essential. As the number of the books 
is less important than their character, it will probably be 
"X^ found more satisfactory to secure several copies of the best 

books than to have the same number of volumes with no 
duplicates whatever. If possible, every pupil should have 
a copy of some good high school American history, not 
necessarily by the same author, in fact preferably by dif- 
ferent ones. As many members of the class as can should 
also have individual copies of the abridged edition of Bryce's 
American Commonwealth, or, in Heu of this, the library 
should contain one copy for every four or five pupils. This 
is the one book indispensable for reference when studying 
the nature of our governments. 

The following libraries are suggested for class use, the 
first one being intended only for small schools with limited 
library funds. 

A SMALL LIBRARY 

Channing, ^ Student's History of the United States. Macmillan. $\.^o. 
Bryce, The American Commonwealth, abridged edition. Macmillan. 

;5Si.75. With topics and questions by Clark in Outlines of Civics. 

75 cents. 
Hinsdale, The American Government. Werner. J^l.25. 
Wilson, The State. Heath. ;?2.oo. 

A FAIR SIZED LIBRARY 

The books given above and the following : — 

Macy, The English Constitution. Macmillan. i^2.oo. 

MkCK, Method in History. Ginn. ;?l.oo. 

Johnston, American Politics. Holt. 80 cents. 

Hart (ed.), Epochs of American History, including ThwAITES, The 

Colonies ; Hart, Formation of the Union; Wilson, Division 

and Reunion. Longmans. ^^1.25 each. 



Suggestions xi 

FiSKE, Critical Period of American History. Houghton. $2.00. 

Walker, Making of the Nation. Scribners. ^1.25. 

'QvviGE.ss, The Middle Period. Scribners. $i.TS- 

Macdonald, Select Documents Illustrative of American History, 

(1776-1861.) Macmillan. ^2.25. 
The Federalist. Several editions from ^1.50 to IS2.25. 
Cleveland, Growth of Democracy. Quadrangle Press. $2.00. 
SCHOULER, Constitutional Studies. Dodd. ^1.50. 
CooLEY, Principles of Constitutional Law. Little. $2.50. 
KARRisoii, This Country of Ours. Scribners. ^1.25. 
Oberholtzer, The Referendum in America. Scribners. $2.00. 
Wilcox, A Study of City Government. Macmillan. $1.50. 
Whitten, Trend of Legislation in the United States. New York State 

Library. 10 cents. 
Dallinger, Nomination for Elective Office. Longmans. %2.00. 
Plehn, Public Finance. Macmillan. ^1.60. 
White, Money and Banking. Ginn. $2.<x>. 

Several volumes that have been announced should be 
added as soon as they are published. Among them are : — 

Burgess, Civil War and Reconstruction. Scribners. 

Hart,- Government under American Conditions. Longmans. 

Dewey, Financial History of the United States. Longmans. 

Moore, American Foreign Policy. Longmans. 

Morse, History of Political Parties in the United States. Longmans. 

All of these last four in American Citizen's Series. 



A LARGE SCHOOL LIBRARY 

The books given above and the following : — 

Lalor (ed.), Cyclopedia of Political Science. 3 volumes. Maynard 
$15.00. 

Bluntschli, Theory of the State. Macmillan. ;^3.50. 

Medley, English Constitutional History. Macmillan. $3.25. 

Macdonald, Documents. (1606-1775.) Macmillan. $2.25. 

Madison, Journal of the Constitutional Convention. Albert, Scott. 
$2.50. 

Meigs, Growth of the Constitution. Lippincott. $2.50. 

Curtis, Constitutional History of the United States. 2 volumes. Har- 
pers. $6.00. 

Thorpe, Constitutional History of the American People. 2 volumes. 
Harpers. J^S.oo. 



xii Snggestions 

Dunning, Civil War and Reconstruction. Macmillan. S2.00. 
Stanwood, History of the Presidency. Houghton. ;^2.5o. 
Wright, Industrial Evolution of the United States. Flood. ;^i.oo. 
BOUTWELL, Constitution at the End of First Century. Ginn. ^2.50. 
Burgess, Political Science and Comparative Constitutional Law. 

2 volumes. Ginn. ^5.00. 
Lamphere, United States Government. Lippincott. 
Wilson, Congressional Government. Houghton. ^1.25. 
McCoNACHlE, Congressional Cofnmittees. Crowell. $l.TS' 
Cooley, Constitutional Limitations. Callaghan. ^6.00. 
Howard, Local Constitutional History. Johns Hopkins. ^3.00. 
Maltbie, Municipal Functions. New York Reform Club. 50 cento. 
Goon^O-w, Municipal Problems. Macmillan. $l.$o. 
Remsen, Primary Elections. Putnam. 75 cents. 
Boone, Education in the United States. Appleton. ^^1.50. 
Wines and Koren, The Liquor Problem. Houghton. $\.<p. 
Warner, American Charities. Crowell. $1.75. 
Adams, The Science of Finance. Holt. $3.50. 
Laughlin, Bimetallism in the United States. Appleton. $2.25. 
Hadley, Railroad Transportation. Putnam. ^1.50. 
Jenks, The Trust Problem. Dovibleday. ^I.oo. 
Stimson, Labor in its Relation to Law. Scribners. 75 cents. 
Foster, A Century of American Diplomacy. Houghton. ^^3.50. 
iKViSlG, Tariff History of the United States. Putnam. $1.2^. 



METHODS 

The value of The few suggestions that are given in the following para- 
mdirect graphs deal almost exclusively with work outside of and in 

review. a ir j 

connection with the text-book. The extent to which the 
book itself is used for regular recitations must depend upon 
the methods adopted by each teacher as likely to be most 
satisfactory, but practically all of the latest reports upon the 
subject by those high in authority favor systematic text-book 
work as the only means of giving the pupil a clear and defi- 
nite knowledge of important facts. Too much emphasis 
cannot be placed upon the prime necessity of accurate 
information on these topics before the students are set 
adrift among a multitude of references, and attention can- 
not too frequently be recalled to the need of constantly 



Suggestions xiii 

reviewing subjects already studied whenever these earlier 
subjects are at all closely connected with the one that is 
being studied. I do not mean that these reviews should 
be previously assigned, but merely that the pupil should 
always be held responsible for anything important that he 
has gone over, and that every opportunity should be taken 
not only of showing the relation of the past work to the 
present, but also of giving the pupil a firmer and more real 
grasp of topics that may slip from him if not mentioned at 
all for a considerable period after they are first studied. 

With regard to the outside work first, then do not touch The use 
it until the subject as presented in the text-book has been °^ ^'^^ . 

susTS'estive 

considered in regular recitation and even in a review which and thought 
emphasizes the significant facts and principles only. This questions. 
may be followed by a discussion of some of the questions 
appended to each chapter. It is not intended that any 
pupil shall study more than a small percentage of the sug- 
gestive questions (those under heads i, 2, 3, etc.), nor that 
any class shall consider a majority of them. Very few of 
these can be properly treated without some investigation on 
the part of the pupil, and a class must beware of attempt- 
ing to do too much. If a few of the most interesting are 
assigned to certain members of the class for report the next 
day, each question being given to at least two pupils, time 
can easily be found for the reports with, in many cases, brief 
discussion. Where the question calls for investigation in 
one or more reference books, the pupil should always be 
required to make a note of the facts and opinions discov- 
ered and the authority by whom they were given. But he 
should not confine himself to these notes in making his 
statement to the class. 

A large proportion of the present day questions in Parts Use of the 

II and III (those under heads i, ii, iii, etc.) can be an- pr^^^P* ^^y 

, . > I > / questions, 

swered m most classes by assignmg the sets to different 

pupils, each pupil having at least one set upon which he is 
held responsible. The practical nature of the subjects con- 
sidered, and the comparative ease with which most of the 



short papers. 



xiv Suggestions 

answers may be found, will undoubtedly quicken and main- 
tain the interest of the pupils better than may be possible 
with the thought (luestions. 
Collateral Additional outside work which should be undertaken to 

reudinjf ;ind vj^mg extent in every class is of three kinds : ( i ) general 

short □ani>r<. ^ \ / o 

collateral reading ; (2) short papers upon topics of a limited 
scope ; and (3) longer papers requiring considerable prepa- 
ration. For the collateral reading the marginal references 
will furnish abundant material unless the teacher desires 
longer accounts than those mentioned. These marginal 
references will also frequently serve as an aid in answering 
some of the tliought (piestions, and may be made the basis 
of the short pai)ers or class talks which constitute the sec- 
ond kind of outside work. In the jireparation of these 
papers the [)upils should never be permitted to confine 
themselves to a single book imless it is unavoidable, but 
care should be taken that they use several and use them 
properly. Unless the pupils are accustomed to work of 
this kind, however, they should be introduced to it gradu- 
ally. The first paper can be based upon two comparatively 
simple narratives, the pupil not being expected to give 
authorities for any of his statements. The second one 
might well deal with a more difticult topic, but still with no 
attempt to give specific references. But for all subsequent 
studies of this nature where the results of his investigation 
are embodied in an essay, or even when they are given 
orally as a report to the class, he should be asked to take 
and preserve notes upon what he has read, which should 
give not only statements, but references to the book and 
the page. These references should be repeated in his 
writing, that is, he should be asked to give author, book, 
and page reference for any important fact mentioned by 
only one authority he consulted, or for any fact about which 
the statements maile by the various historians disagreed. 
Longer A report or a short paper may be required every week or 

two, but there sliould be no attempt to have in one year 
more than two of the longer essays, which employ much the 



theses. 



Suggestions xv 

same methods with the expectation of going quite deeply 
into some subject. Moreover, the pupil should not be 
called upon for any short papers or for many reports while 
the longer one is being prepared. The accounts to which 
the pupil may be referred should be both longer and more 
numerous than those previously used. Some of the sets 
of references given at the end of each chapter may serve 
the purpose ; or, if library facilities are limited or other sub- 
jects are preferred, the teacher may ask the pupil to select 
a list of references upon some topic which is to be carefully 
revised by the teacher before real work is begun. So far as 
possible, the pupils should make a provisional outline or 
topical analysis to be used as a framework for the essay, 
and after the paper is completed this should be altered so 
that it correctly represents the topics treated. This topical 
analysis, after submission to the teacher, is to be placed 
upon the board before the paper is read, or, if it can be 
done, mimeograph copies should be placed in the hands 
of every pupil. In these papers as in the shorter ones, the 
authorities with book and page should be given whenever 
necessary ; but the extent to which the other pupils should 
be compelled to take notes upon these papers and reports 
must be dictated by the time and other limitations upon 
the class. 

The real purpose of the work described in the two pre- intensive 
ceding paragraphs is the training of the individual pupil in ^'"^-^^ ^ 
the use of references and in collecting the results of his periods in 
research ; its value to the class as a whole is purely inci- ^^'• 
dental. But this is only partially true of the study con- 
nected with the questions at the end of each chapter, and 
still less the case with oral reports from marginal references 
which supplement the text upon some point of more than 
usual interest. In the following suggestions for intensive 
study in the class room, it is believed the class as a whole 
can be given substantial assistance by showing them how to 
compare different accounts, to reconcile, if may be, con- 
flicting statements, and to determine what amount of truth 



xvi Suggestions 

or error lies in each. A good period for study is that im- 
mediately preceding the Revolutionary War, covering the 
fifteen years from 1760 to 1775. Upon this there are a 
number of excellent accounts of moderate length, repre- 
senting several different points of view, e.g. Hart's Forma- 
tion of tJie Union, Sloane's French War and Revolution, 
Channing's Student's History and the United States, 1765- 
1865, Lodge's Colonies, Fiskt's American Revolution, Vol. I, 
Lecky's American Revolution, Green's Short History of the 
English People, Gardner's History of England, etc. If a 
dozen or more copies of these different books can be ob- 
tained and each pupil held responsible for the book assigned 
him (an outline being used to denote what topics will be 
considered), he will be obliged to find out what his book 
says on each topic and to discard what it says on others not 
taken up. With the facts and opinions from these books 
before it, the class will then have an opportunity to note 
down and later compare these accounts. Constant watch- 
fulness will be necessary to see that the study does not 
degenerate into a mere comparison of differences for the 
sake of finding what differences there are, rather than for 
the purpose of ascertaining the truth about the topic under 
discussion. 
Use of tables It is frequently found that the best idea of a subject is 
and outlines, gained by placing it in the form of a table or outline. When 
the data belong to several sources that are contemporaneous, 
the table may be used to make a comparative analysis; 
when they follow each other in historical sequence, an out- 
line will be necessary. Both can be used to simpHfy the 
work either of the class or of individuals, and the gain in a 
better grasp of the subject and in convenience for review 
will usually more than repay the time spent on the analysis. 
The danger comes from placing too great dependence upon 
the method, particularly with the outline. The relation 
existing between one event and another may not be indi- 
cated, and the analysis may be nothing more than a com- 



aim. 



Suggestions xvii 

bination of unimportant facts, while the one important truth 
is missed. 

In conclusion it may be well to urge that the methods Mental train- 
adopted in the recitation and in outside study should have "'^' ''''"'^'' 

.... . . than acquisi- 

as their prmcipal ami the traming of the mind and not the tion of infor- 
acquiring of information. More than anything else must •"•'''•>" "i"^ 
the pupil be taught to discriminate between what is impor- 
tant and what is unimportant, discarding what is of no 
value and making an effort to retain the few things worth 
while. It is well not to forget that in history and civics 
facts are absolutely essential for any training that is worthy 
of the name, and that an accurate knowledge of focts is a 
help of the highest value without which reasoning is useless 
and judgment little better than prejudice. Fads should, 
therefore, not be despised nor neglected, nor should the 
importance of memorizing them for temporary or perma- 
nent use be minimized, but not even those that deal with 
the things of to-day should be made an end in themselves, 
but a means to acquire that knowledge of the trend of 
events and of the nature of our civil governments which 
shall enable us to see things as they are and do what is best 
for our country's good. 

All of these suggestions have been tested by the author 
with classes varying in size from five to thirty, and he 
believes that the results have been satisfactory. 



ABBREVIATIONS 

COMMONLY USED IN REFERENCES 



A. A. A Annals of the American Academy of Political 

and Social Science. 

A. H. A Reports of the American Historical Associa- 
tion, 

At, Mo Atlantic Monthly. 

Bryce Bryce, The American Commonwealth, abridged 

edition. 

Channing .... Channing, Students' History of the United 
States. 

Harper's Harper's Monthly Afagazine. 

Hinsdale Hinsdale, The American Government. 

J. H. U. S. . . . . Johns Hopkins University Series in Historical 
and Political Science. 

Lalor Lalor (ed.) , Cyclopedia of Political Science. 

P. S. Q Political Science Quarterly. 

N. A. R North American Review. 

Story, Commentaries . Story, Commentaries on the Constitution. 

Amer American. 

Cong Congressional. 

Const Constitution. 

const'l constitutional. 

econ economy or economic. 

Eng English. 

hist historical or history. 

jol journal. 

pol political. 

R. Review. 

Soc Sociology. 

Unless otherwise indicated, all reference are to pages, and to the last 
edition published before 1901. 



six 



TOPICAL ANALYSIS 



CHAPTER I 



Some Elements of Politics. §§ 1-39 



Development of political societies . 
The State : 

(1) The State and the nation, 

a. Definitions of the State . 

b. The nation ..... 

(2) Theories concerning the origin and nature of the State 

a. Theory of divine right .... 

b. Contract theory 

c. Natural or historical theory . 

(3) Natural theory and social duties 

(4) The kinds of States 

(5) Historical forms of States, 

a. General ....... 

b. Federal States and Confederacies . 

c. The Federal State ..... 

(6) Characteristics of modern States . 
Sovereignty and constitutions : 

(i) Character of sovereignty .... 

(2) Disputes concerning the nature of sovereignty 

(3) Written and unwritten constitutions, 

a. Distinction between 

b. Advantages of a written constitution 
Government : 

(i) Development of government . 

(2) Government and the State 

(3) Qassification of government as, 

a. Monarchical or . . . 

b. Democratic . . ' . 

c. Centralized or dual 

d. Presidential or parliamentary 



10 
II 
12 
13 

14 
IS 

16 
17 

18 
19 

20 
21 
22 
23 



xxii Topical Analysis 

(4) The departments of government, section 

a. Legislative 24 

b. Executive 25 

c. Judicial 26 

4. Sphere of State activity : 

(i) Theories concerning 27 

(2) Proper functions of government 28 

a. Constituent. 

b. " Ministrant." 

(3) Limits of State interference 29 

5. Law, Liberty, Equality : 

( 1 ) Growth of law 30 

(2) The relation of law to liberty 31 

(3) The kinds of law . . . . . . . .32 

(4) The kinds of liberty 35 

(5) The kinds of equality 34 

6. Processes in political growth : 

(i) Society and its institutions 35 

(2) Nature of revolution and evolution . . . .36 

(3) Some lessons of history, 

a. Slavery . , yj 

b. Mortality of States 38 

c. Tendencies of modern development • • • 39 



PART I 

HISTORICAL DEVELOPMENT 

CHAPTER II 

Development on English Soil. §§ 40-50 

England before 1600: 
(i) Liberty and government in Saxon England ... 40 

(2) Essential factors in English constitutional development 41 

(3) The Norman rule : general characteristics ... 42 

(4) Contest between the Crown and the nobility, 

a. Thirteenth century 43 

b. Fourteenth to sixteenth centuries .... 44 
England at the close of the Tudor period : 

(1) Central government . 45 

(2) Local governments . . . . . . .46 

(3) The " rights of Englishmen " 47 



Topical Analysis xxiii 

Constitutional development since 1600: sbction 

(1) The revolutions of the seventeenth century ... 48 

(2) The cabinet system 49 

(3) The constitution made democratic .... 50 



CHAPTER III 

The Colonial Period. §§ 51-79 

Introductory : 

(i) The planting of colonies 5 1 

(2) Influences affecting colonies 52 

(3) Lines of political development 53 

(4) The charter of 1606 54 

The Southern colonies : 

(i) General character of political and social conditions . 55 

(2) The first Virginia Assembly ...... 56 

(3) The people and the colonial government • • • 57 

(4) Local government .58 

New England : 

(1) General character of political and social conditions . 59 

(2) Early constitutional development in Massachusetts . 60 

(3) The Connecticut constitution (1639) .... 61 

(4) The town meeting 62 

Middle colonies : 

(i) New York 63 

(2) Pennsylvania 64 

Colonial government: 

(i) General 65 

(2) The charter as a colonial constitution .... 66 

(3) The governor 67 

(4) The legislature, 

a. Organization and method of legislation . . 68 

b. Development of a bicameral system ... 69 

c. Growth of the power of the Assembly ... 70 

(5) England and the colonies, 

a. Relation of the colonies to the King . . . 71 

b. Parliament and the colonies . . . . • 7* 
Liberty : 

(i) Political freedom '73 

(2) Economic freedom '74 

(3) Social and other inequalities among whites ... 75 

(4) Slavery 76 



xxiv Topical Analysis 

7. Union: section 

(i) Union before 1750: New England Confederation . . 77 

(2) Albany plan of union 78 

Comparison of English and American constitutional de- 
velopment 79 

CHAPTER IV 

The Revolution (1763-1787). §§ 80-105 

1. Introduction : 

(i) Character of the Revolution 80 

(2) Effects of the Revolution 81 

(3) The situation in 1760 82 

2. The beginnings of revolution : 

(1) The conflict precipitated, 

a. New colonial policy of England .... 83 

b. The Stamp Act 84 

c. The Tovvnshend acts 85 

(2) The organization of opposition, 

a. Intercolonial committees of correspondence . . 86 

b. The first Continental Congress .... 87 

{a) The Congress called. 
{p) Its work and influence. 

c. The second Continental Congress .... 88 

(a) Powers. 
(Ji) Authority. 

3. Union and independence during the war: 

(i) Declaration of Independence, 

a. History 

b. Character 

c. Influence ..... 
(2) The first state constitutions, 

a. Formation and significance , 

b. Characteristics .... 

4. The Confederation : 

(1) Formation of the Confederation . 

(2) Character of the Articles of Confederation 

(3) Defects of the Confederation 

(4) Failure of the Confederation . 

5. Nationality and liberty during the Confederation : 

(l) Development of conditions favorable to nationality 

a. Commerce ....... 

b. The public domain 

c. Religious organizations ..... 



89 
90 
91 

92 
93 

94 
95 
96 

97 

98 

99 
100 

lOI 



Topical Analysis 



XXV 



(2) Political and social reform, section 

a. Religion 102 

b. Class distinctions ....... 103 

c. Political qualitications . . . . . .104 

(3) Condition of the United States in 1787 . . . . 105 



CHAPTER V 



The Constitution (1787-1789). §§ 106-138 

A convention called : 

(i) Feeling regarding a constitutional convention . . 106 

(2) The purpose of the Convention ..... 107 

(3) The members 108 

The work of the Convention : 

(1) The question of nationalism, 

a. Virginia plan log 

b. The contest over nationalism . . . .110 

c. The compromise over representation in Congress . in 

(2) Other questions and compromises II2 

a. The three-fifths compromise . . . . -113 

b. The last great compromise I14 

c. Important details . . . . . . • ^^5 

d. Method of amendment I16 

Ratification : 

(i) Influences affecting ratification 117 

(2) The first states n8 

(3) The later states 119 

(4) The first ten amendments 1 20 

The Constitution as completed : 

(1) General character, 

a. The Federal State I2I 

b. The central government and the Constitution (1787 

and since) . . . . . . . .122 

c. A government of checks and balances . . . 123 

d. Theories concerning the Constitution . . .124 

(a) Compact theory 125 

((J) National theory 126 

e. The preamble 127 

(2) The Congress, 

a. The Senate 128 

b. The House of Representatives . . . . 1 29 

c. Powers of Congress 130 



XXVI 



Topical Analysis 



(3) Other departments, 


SECTION 


a. The Executive 


• 131 


b. The Judiciary 


. 132 


(4) The nation and Ihc states, 




a. General rchition 


• »33 


b. Pruhihilions on the states .... 


• «34 


c. Prohibitions and Hniitations on the United Stat 


es 


government 


• 13s 


(5) Sources 


. 136 


a. Knghsh sources ...... 


• 137 


b. American sources 


. 138 


CHAPTER VI 





NATKWAI.ITV and Cot.ONIAMSM (1789-I815). §§ I39-I6I 

The national era: 
(i) Character of nationality ...... 139 

(2) The three periods of national development . . . 140 

(3) Conditions aflecting nationality ..... I41 
C)rganization of the government : 

(1) The executive, 

rt. The President 142 

b. The executive departments 143 

(2) The Congress 144 

(3) Tlic judiciary 145 

(4) Questions of policy, 

a. Finance 146 

(rt) Revenue 147 

(Ji) Public debts I48 

(t) National bank 149 

b. P'oreign affairs 150 

Political parties : 

( 1 ) Formation of parties, 

a. Democratic- Republican 151 

b. Federalist party . . , . . . .152 

(2) Federalist excesses and the rcsidts, 

a. Alien and sedition laws ..... 153 

b. Virginia and Kentucky resolutions . . . 154 

c. '• Revolution of 1800" 155 

Republican supremacy : 

(i) Louisiana, 

a. The purchase 156 

b. Influence of the purchase 157 



Topical Analysis 



xxvu 



8KCT10N 

(2) Foreign domination 158 

(3) Nationalist reaction 159 

Development in the states : 

(1) The westward movement ...... 160 

(2) The state constitutions 161 



CHAITER VII 



Nationality and Democracy (1815-1845). §§ 162-190 

The movement toward democracy l6a 

The new nationality: 

(1) Altered conditions, 

a. Economic changes . . . . . .163 

1). The United States Bank 164 

(2) The westward muveincnt, 

a. Internal improvements 165 

b. The Missouri question, 

(a) The Compromise 166 

{b) Effects of the Compromise .... 167 

(3) The Supreme Court 168 

(4) Foreign affairs . . . . . . . .169 

Political reorganization on a democratic basis: 

(1) Democracy in the states (1815-1830) .... 170 

(2) Party changes . . . . . . . • '7* 

(3) New political methods, 

a. The convention system 1 72 

b. Other methods 1 73 

(4) The executive, 

a. The presidency made democratic . . . • '74 

b. Results of the change . . . . . • *75 
Questions affecting nationality: 

(i) Influences unfavorable to nationality, 

a. The Cherokee Case . . . . . .176 

b. Nullification of the tariff 1 77 

c. Other political questions ..... 178 
(2) Influences favorable to nationality, 

a. The new states . . . . . . • '79 

b. I''oreign immigration ...... 180 

c. Improved means of communication . . . l8l 
Phases of later democratic development ( 1 830-1 860) . . 182 

(i) Constitutional changes 183 



XXVlll 



Topical Analysis 



(2) Changes in state government, 

a. Executive and legislative branches 

b. The judiciary . . . . 

(3) Increased state activity, 

a. Finance . . . . . 

b. Education . . . . . 

c. Equalization of rights . 

(4) Local government, 

a. Towns and counties 

b. Municipal government . 



SECTION 

184 
18S 



186 

187 



189 
190 



CHAPTER VIII 

Nationality and Slavery (1845-1877). §§.191-214 

Slavery and the South . . . . . ... 

Slavery before 1 845 : 

(1) Slavery in the states 

(2) Slavery in national territory . 

(3) Increase of sectionalism 
Slavery in the territories (1845- 1 860) 

(i) The Compromise of 1850 

(2) The Kansas-Nebraska Bill 

(3) The Dred Scott Case . 
Secession and Civil War : 

(i) Secession .... 

(2) Comparison of the North and the South, 

a. The South and the North in 

b. The South (i 776-1 861) 

c. Advantages of the North over the 

(3) The situation in 1861 . 

(4) The failure of secession 

(5) The Constitution during the Civil War 
Reconstruction .... 

(i) Restoration, 

a. Status of the seceded states 

b. Plans of restoration 
(2) Early reconstruction period, 

a. Negro legislation . 

b. Military reconstruction . 

c. Impeachment of President Johnson 

d. Effect of the verdict on impeachment 
Later reconstruction, 

The constitutional amendments 



776 



South 



191 

192 

193 
194 

195 
196 
197 



199 
200 
20 1 
202 
203 
204 
205 

206 
207 

208 
209 
210 
211 



(3) 



Topical Analysis xxix 

SECTION 

b. The Supreme Court on reconstruction questions . 213 

c. The aftermath of reconstruction .... 214 

CHAPTER IX 

The New Nation (1865-1901). §§ 215-231 

Economic features of the new nation : 
(i) Changed economic conditions, 

a. Conditions before the war 215 

b. Conditions after the war 216 

(2) Development of industry and commerce . . . 217 

(3) Government control of economic institutions, 

a. The control of railroads 218 

b. Regulations for industrial corporations . . . 219 

c. The tariff 220 

d. The currency 221 

The states : 

(i) The people and the state constitutions .... 222 

(2) The suffrage 223 

(3) Reform of elections 224 

(4) Civil Service Reform 225 

Foreign affairs : 

(1) Cuba and the United States 226 

(2) Acquisitions of territory _ . 227 

The Constitution at the end of a century : 

(i) The nation and the states 228 

(2) The central government 229 

(3) The unwritten constitution 230 

(4) Popular cooperation in government . . . .231 



PART II 

GOVERNMENT 

CHAPTER X 

General Character of American Federalism. §§ 232-254 

Centralization and decentralization : 
(i) Centralizing tendencies in modern history . . . 232 
(2) Centrahzation in the United States, 

a. Before 1790 233 

b. Since 1790 234 



XXX Topical Analysis 

(3) Advantages of a federal system. section 

a. Negative advantages 235 

b. Positive advantages 236 

(4) Disadvantages of a federal system 237 

2. The nation and the states : 

(i) General distribution of powers 238 

(2) The nation, 

a. Sphere of national government .... 239 

b. Powers exercised by the United States government 240 

(3) Powers concurrently exercised by the United States or 

the state governments 241 

(4) Sphere of state activity ....... 242 

(5) Prohibitions and limitations, 

a. Purpose and classes of prohibitions upon govern- 

ment ......... 243 

b. Prohibitions on the states ..... 244 

c. Prohibitions upon the United States government . 245 

(6) Interdependence of the national and state governments 246 

3. American citizenship : 

(1) Dual character of American citizenship . . . . 247 

(2) The Fourteenth Amendment, 

a. Definition of citizenship 248 

b. Interpretation of the amendment (Slaughter House 

Cases) . . . . . . . . 249 

(3) Privileges and immunities of citizenship, 

a. United States citizenship ..... 250 

b. State citizenship . 251 

(4) Naturalization ........ 252 

4. The future of the Federal State : 

(i) The permanence of American federalism . . . 253 
(2) Conditions affecting American federalism . . . 254 



CHAPTER XI 
The Senate. §§ 255-276 

Regulations for both houses : 

(1) The Congress 255 

a. The bicameral legislature in history . . . 256 

b. Sessions of Congress 257 

(2) Membership, 

a. Privileges of members 258 

b. Compensation 259 



Topical Analysis 



XXXI 



(3) Legislation, section 

a. Method of legislation 260 

b. Difficulties in passing laws, 

(a) Obstruction , 261 

(3) Conference committees .... 262 

(c) Congress and the veto ..... 263 
The Senate : membership and organization : 

(i) Composition of the Senate 264 

a. The upper houses in other countries . . . 265 

(2) Qualifications of senators 266 

(3) Elections, 

a. Present method 267 

b. Proposed changes 268 

(4) Organization, 

a. Officers 269 

b. Committees 270 

c. Senate regulations. . . . . . .271 

Special powers of the Senate : 

(i) Appointment 272 

(2) Treaties . 273 

(3) Method of impeachment 274 

(4) Other special powers 275 

(5) Sources of senatorial influence 276 



CHAPTER XII 



The House of Representatives. §§ 277-300 



Composition : 
(i) General, 

a. Theory of membership . 

b. Method of apportionment 

(2) Term and qualification of representatives 

(3) Election, 

a. Congressional districts . 

b. Proportional representation . 

c. Contested elections 
Organization and work of the House : 

(i) General character .... 

(2) Committee on rules 

(3) The speaker, 

a. Power 

b. Growth of the speaker's power 



277 
278 
279 

280 
281 
282 

283 
284 

285 
286 



XXXll 



Topical Analysis 



(4) The committee system, 

a. Development and methods . 

b. Criticisms 

(5) The legislative process, 

a. The course of a bill .... 
h. The transaction of business . 

c. The committees of the whole 
Special powers of the House: 

(1) Regarding revenue, 

a. The raising of revenue .... 

b. Sources of revenue .... 

c. Difficulties encountered by the committee 

and means ...... 

(2) The regulation of expenditure 

(3) The reform of financial methods . 

(4) Election of a President 

Position of the House: 

(1) Characteristics ...... 

(2) The House and the Senate .... 

(3) The future organization of the House . 



SECTION 

. 287 
. 288 



ways 



289 
290 
291 



292 
293 

294 

295 
296 
297 

298 
299 
300 



CHAPTER XHI 
The Powers of Congress. 



301-325 



General powers 301 

Financial : 

(i) Taxation 302 

(2) Borrowing money 303 

Military : 

(1) Military power and the army 304 

(2) The militia 305 

(3) The navy 306 

(4) Coast defence 307 

Territorial : 

(1) Territorial control, 

a. Views regarding ....... 308 

b. Principles of ....... . 309 

(2) Acquisition of territory 310 

(3) Territorial government, 

a. Organized territories 31 1 

b. District of Columbia 312 

(4) Admission of new states, 

a. Usual methods . . . . . . • 3'3 

b. Limitations upon admission of . . . .314 



Topical Analysis 



XXXlll 



SBCnOM 

(5) Congress in the states 315 

Commercial : 

(1) I'oreign commerce, 

a. 'Ihc sul)jcct in the Conventicm of 1787 . . . 316 

b. Means of promuling foreign commerce . . • 3'7 

(2) Interstate commerce ....... 318 

(3) Commercial regulations relating to 

a. Bankruptcy laws ....... 319 

b. Coins ......... 320 

c. Weights and measures ...... 321 

Miscellaneous : 

(i) Naturalization 322 

(2) Treason and piracy 323 

(3) Other powers 324 

(4) The clastic clause 325 



CHAPTER XIV 



The President. §§ 326-351 



Position of the President .... 
Election : 
(i) Constitutional provisions, 

a. Qualifications .... 

b. Term and compensation 

c. First method of election 

(2) Present method of election, 

a. Nomination ..... 

b. The campaign .... 

c. The electoral college, 

{a) Selection of presidential electors 
(^) Counting the votes 

(3) Other plans for choosing the President . 

(4) The presidential succession . 

(5) The inauguration 

Powers : 

(i) Introductory, 

a. History of the President's power . 

b. The execution of law 
(2) Military, 

a. General military powers in time of war 
^. In internal affairs .... 



326 



327 
328 
329 

330 

332 
333 
334 
335 
lift 



337 
338 

339 
340 



xxxiv Topical Analysis 

(3) Appointment and removal, section 

a. Appointment, 

{a) In history 341 

{U) At present 342 

(f) Observations on the power .... 343 

b. Removal ........ 344 

c. The civil service ....... 345 

(4) Legislative, 

a. Historical 346 

b. The President's message 347 

c. The veto 348 

(5) Foreign affairs, 

a. Treaties 349 

b. Other foreign affairs 350 

(6) Judicial power 351 

CHAPTER XV 
The Executive Departments. §§ 352-373 

The departments and the Cabinet , . . . . 352 

1. The Department of State : 

(i) Duties of the Secretary 353 

(2) Representatives abroad, 

a. The diplomatic service 354 

b. Consuls 355 

c. Reform of the system 356 

2. The post-office : 

(i) History and purpose 357 

(2) Organization and work 358 

(3) Defects of the postal system 359 

3. The Interior Department : 

(i) The department in general 360 

(2) Land policy ......... 361 

(3) Pensions 362 

(4) Indian affairs 363 

(5) Patent office 364 

(6) Other bureaus 365 

4. Other departments : 

(i) The Treasury Department 366 

(2) The War Department 367 

(3) The Navy Department 368 

(4) The Department of Justice 369 

(5) Department of Agriculture 370 



Topical Analysis xxxv 

Bureaus and commissions outside the Cabinet : section 
(i) The Department of Labor 371 

(2) The industrial commission 372 

(3) Other commissions 373 

CHAPTER XVI 
The Judicial Department. §§ 374-388 

The judiciary and the Constitution : 

(1) Position of the courts in our constitutional system . . 374 

(2) Unconstitutional legislation, 

a. Declaring laws unconstitutional .... 375 

b. Historical use of the power 376 

(3) Some rules of judicial interpretation .... 377 
The judicial department as a whole : 

(i) The system of courts 378 

(2) Term and appointment of judges ..... 379 

(3) Jurisdiction, 

a. Classes of cases ....... 380 

b. Methods and jurisdiction : historical . . . 381 

(4) Relation to state courts 382 

The Supreme Court : 

(1) Organization 383 

(2) Jurisdiction 384. 

Inferior courts 

(1) Circuit court of appeals 385 

(2) Circuit courts 386 

(3) District courts 387 

(4) Court of claims 388 

CHAPTER XVII 

The Relations of the Three Departments. 
§§ 389-407 

Introductory : the two demands on a government organization 389 
General relations of executive and legislature : 

(1) Two types of government 390 

(2) The Cabinet system, 

a. Character 391 

b. Advantages ........ 392 

c. Under English and American conditions . . 393 

(3) Presidential government, 

a. Character ........ 394 

b. Advantages 395 



xxxvi Topical Analysis 

2. Congress and the President : section 

(1) Congressional control 

a. Over the executive departments .... 396 

b. Over the President 397 

c. The Senate and the President .... 398 

(2) Executive independence, 

a. Executive domination of Congress . . . 399 

b. Uncontrolled power of the President . . , 400 

(3) Cooperation between the departments, 

a. At present 401 

b. As affected by political parties .... 402 

c. Closer union of the departments .... 403 

3. The courts and the other departments: 

(1) Congress and the courts, 

a. Influence of the judiciary over Congress . . 404 

b. Judicial dependence upon Congress . . . 40$ 

(2) The President and the courts 406 

Conclusion : the departments in the states .... 40/ 

CHAPTER XVIII 

The States : Constitutions and Government. §§ 408-437 

Introductory : 

Position of the states ....... 408 

Uniformities and diversities among the states . . 409 

1. The constitutions : 

(1) History, 

a. The development of the written constitution , . 410 

b. The three stages in constitution making . .411 

(2) Formation, 

a. Process of forming a constitution at the present . 41 2 

b. Amendment 413 

c. Frequency of changes 414 

(3) Features, 

a. Contents . . 415 

b. Bills of rights 416 

2. The legislature : 

(i) The state government in general 417 

(2) Organization, 

a. Composition of the Senate 418 

b. Composition of the lower house .... 419 

c. Sessions 420 

d. Legislative regulations 421 



Topical Analysis xxxvii 

(3) Limitations and prohibitions on legislation, section 

a. Prohibitions, 

(a) Due to legislation by constitutional con- 
vention ....... 422 

(3) Powers not exercised by any authority . . 423 

b. Limitations regarding 

{a) Local and special legislation . . . 424 

{b) Legislative procedure 425 

(c) Finance 426 

(4) Character, 

a. Real power ........ 427 

b. Powers of the separate houses . ■. . . 428 

c. Defects ........ 429 

The executive : 

(i) Decentralization of the administration .... 430 

(2) Powers of the governor . . . . . . .431 

(3) Central executive officials ...... 432 

(4) Term and qualifications of officials .... 433 
The judiciary: 

(i) General .......... 434 

(2) System of courts 435 

(3) The judges, 

a. Selection ........ 436 

b. Term and qualifications 437 

CHAPTER XIX 

Some Phases of State Activity. §§ 438-465 

Uniformity and diversity in state laws : 

(i) General 438 

(2) Disadvantages of diversity in relation to, 

a. Marriage and divorce ...... 439 

b. Control of corporations ...... 440 

c. Criminal legislation 441 

(3) Uniformity, 

a. Lackof uniformity an apparent rather than a real evil 442 

b. Means of producing greater uniformity . . . 443 

c. Extent of uniformity ...... 444 

The public school system : 

(i) Evolution 445 

(2) State regulations, 

a. State systems of education 446 

b. The state school board and superintendent . . 447 



xxxviii Topical Analysis 

(3) Administration, section 

a. Local school administration 448 

b. School finances 449 

(4) The preparation and selection of teachers . . . 450 

3. Control of the liquor traffic : 

(1) The liquor problem 451 

(2) Systems of state control 452 

a. The dispensary 453 

b. The license system 454 

c. State prohibition 455 

d. Local option 456 

(3) General results of liquor legislation and control . '457 

4. Pimishment and reformation : 

(i) Historical 458 

(2) Penal institutions, 

a. The state prisons ....... 459 

b. The state reformatories 460 

c. Local institutions , . . , . . .461 

(3) The problem of correction and reformation . . . 462 

5. Conclusion : 

(i) Other state activities 463 

(2) Increase of state activity 464 

(3) State finance 465 



CHAPTER XX 

Town and County Government. §§ 466-487 

1. The state and the localities : 

(i) Legislative centralization of the state .... 466 

(2) Administrative decentralization, 

a. Characteristics , 467 

b. How its dangers are avoided 468 

(3) Home rule in rural districts 469 

(4) Types of local government 470 

2. Town government : 

(1) The New England town, 

a. Historic changes in 471 

b. The town meeting 472 

c. Town officials 473 

(2) Other towns, 

a. The New York town 474 

b. The township in the West 475 



Topical Analysis xxxix 

County government : section 

(i) The New England county 476 

(2) The Southern county 477 

(3) The county in general, 

a. The county board 478 

b. Chief officials 479 

c. Other officials 480 

(4) Incorporated villages 481 

Functions of local government : 

(i) General 482 

(2) Public charities, 

a. Private and public charity 483 

b. State boards of charities 484 

c. Local charities, 

{a) The almshouse 485 

{P) Other local charities 486 

(3) The rural roads 487 

CHAPTER XXI 

The MuMciPALi-n-. §§ 488-515 
General : 

(i) Some problems of the city 488 

(2) Development of municipal government .... 489 

(3) The twofold functions of the city 490 

(4) The charter, 

a. How prepared ....... 491 

b. Reform in charter making 492 

Government : 

(1) The council, 

a. Organization 493 

b. Powers 494 

(2) Administrative organization, 

a. The mayor 495 

b. Other elected officials 496 

c. Departments, 

{a) General organization 497 

{h) Police, fire, and school departments . . 498 

d. The ci\al service 499 

(3) Municipal courts 5°° 

Functions and finance : 

(i) Two sets of functions tfit 

(2) Administrative functions, 

a. Care and protection of the streets .... 502 



xl Topical Analysis 

SECTION 

b. Police regulations 503 

c. Miscellaneous functions 504 

(3) Industrial functions, 

a. Water supply 505 

b. Gas and electric lighting 506 

c. Miscellaneous business enterprises . . , 507 

(4) The granting of franchises 508 

(5) Finance, 

a. Sources of revenue 509 

b. Items of expense .510 

c. Municipal debts 511 

4. Municipal reform through 

(i) Restriction of the suffrage 512 

(2) Awakened popular interest 513 

(3) Separation of state and city elections . . . .514 

(4) Municipal home rule 515 



PART III 

POLICIES AND PROBLEMS 

CHAPTER XXII 

SUFFIIAGE AND ELECTIONS. §§ 5 1 6-5 3 1 

1. The suffrage : 

(1) Historical changes in the suffrage 516 

(2) The suffrage at present, 

a. Citizenship and residence . . . . • 5^7 

b. Special restrictions . . . . . .518 

(3) Woman suffrage . . . . . . . -519 

2. Control of elections : 

(i) Improved means of ascertaining the popular will . . 520 

(2) Preelection requirements 521 

(3) The ballot, 

a. History ......... 522 

b. Ballot reform ....... 523 

c. Polling the votes 524 

(4) " Corrupt practices " acts 525 

3. Proportional representation : 

(1) Plans actually used ....... 526 

(2) Suggested improvements 527 



Topical Aftalysis 



xU 



4. Direct legislation : sbctiok 
(i) Methods, 

a. The referendiun 528 

b. The initiative 529 

(2) Results, 

a. Advantages 530 

b. Disadvantages 531 



CHAPTER XXin 

The Political Party. §§ 532-553 

The place of the political party in our political system . . 532 
History of political parties : 
(i) The earliest parties, 

a. The Federalists 533 

b. The Democratic-Republicans .... 534 

(2) The middle period, 

a. The Democratic party (1824-1852) . . . 535 

b. The \Miigs 536 

(3) Recent parties, 

a. The second reorganization (1852-1860) . . 537 

b. The parties since i860 ...... 538 

c. Recent presidential campaigns, 

(a) The tariff campaigns 539 

(^) ITie campaigns of 1896 and 19CX) . . 540 
Organization and work : 
(i) The work of a party 541 

(2) The permanent committees, 

a. General . 542 

b. The national committee 543 

c. State and local committees 544 

d. The boss and the machine 545 

(3) The nominating sj-stem, 

a. The national convention, 

(a) Composition and organization . . . 546 

(^) The platform and the nominees . . . 547 

b. State and local conventions 54^ 

c. The primary 549 

Control of parties and reform of methods : 

(i) The primary, 

a. Reform of 55° 

b. Public control of 55^ 

(2) Nominations, 

a. Importance of 55* 

b. Direct nominations 553 



xlii Topical Analysis 



CHAPTER XXIV 

Constitutional and Legal Rights. §§ 554-573 

Introduction : section 
(i) The bills of right in history and law .... 554 
(2) Classification of legal rights 555 

1. Rights guaranteed by the United States Constitution : 

(i) General 556 

(2) Against all government 557 

(3) Against the national government in respect to 

a. Freedom of speech and of religion . . . 558 

b. Personal security 559 

c. Other matters 560 

(4) Against the state governments, 

a. By prohibiting laws impairing the obligation of 

contracts ........ 561 

b. By guaranteeing protection through " due process 

of law " 562 

2. Rights guaranteed by the state constitutions and laws : 

(i) The state bills of rights 563 

(2) Against the state governments in respect to 

a. Religious freedom ...... 564 

b. Freedom of speech and the press .... 565 

c. Private property 566 

d. Rights of a person accused of crime . . . 567 

(3) Rights protected under the laws and codes, 

a. Under the penal codes ...... 568 

b. In suits at law or in equity 569 

c. Homestead exemption laws ..... 570 

3. Rights secured through trial by jury: 

(i) Extensive use of the system 571 

(2) Results of the system, 

a. Advantages 572 

b. Disadvantages 573 

CHAPTER XXV 

Taxation. §§ 574-592 
I. Introductory: 

(i) The question of taxation 574 

(2) Characteristics of a good tax 575 

(3) Tax terms 576 

(4) The cost of government 577 



Topical Analysis xliii 

2. National taxes : section 

(i) The national tax system 578 

(2) History of national taxes 579 

(3) Operation of custom duties 580 

(4) Internal revenue system, 

a. Ordinary internal taxes ...... 581 

b. History of internal revenue taxation . . . 582 

c. Income taxes 583 

(5) Other national taxes 584 

(6) Administration of national taxes 585 

3. State and local taxes 586 

(1) The general property tax, 

a. Its character 587 

b. Difficulties in assessment 588 

c. Defects 589 

d. Equalization 590 

(2) Corporation taxes 59* 

(3) Special assessments 592 

CHAPTER XXVI 

Money. §§ 593-604 

The two functions of money 593 

1. Monometallism and bimetallism : 

(i) Government and the money system .... 594 

(2) Bimetallism, 

a. Effect of bimetallism 595 

b. Its advantages and disadvantages .... 596 

(3) Monometallism 597 

2. History of money in the United States : 

(i) The money standard, 

a. From 1792 to 1870 598 

b. From 1870 to 1900 599 

(2) Paper money, 

a. In our early history ...... 600 

b. Treasury notes since i860 601 

c. National bank notes 602 

(3) The Act of 1900 ........ 603 

(4) Present forms of money .•.*.. 604 



xliv Topical Analysis 



CHAPTER XXVII 
Trade and Industry. §§ 605-621 

SECTION 

Government, trade and industry 605 

1. The tariff: 

( 1 ) Two views regarding the purpose of the tariff, 

a. Free trade 606 

b. Protection 607 

(2) Our tariff history, 

a. Our early tariffs 608 

b. Development of a highly protective tariff . . 609 

c. Recent tariffs 610 

2. Control of domestic commerce : 

(i) General 6n 

(2) The beginnings of state control ..... 6l2 

(3) The Interstate Commerce Commission .... 613 

(4) State railway regulation ...... 614 

3. Regulation of industry : 

(1) Restraint of industry in the past 615 

(2) Corporation control of the present .... 616 

(3) The evolution of trusts 617 

(4) Control of trusts 618 

4. Labor legislation : 

(1) Historical 619 

(2) Protection of the employee to-day .... 620 

(3) Attitude of government toward labor disputes . . 621 

CHAPTER XXVIII 
Foreign Affairs and Colonies. §§ 622-630 

Increased importance of foreign affairs 622 

1. Some chapters of American diplomatic history : 

(i) The treaty of 1783 623 

(2) The diplomacy of the Civil War 624 

(3) The Monroe Doctrine, 

a. Some early applications 625 

b. In recent history 626 

(4) Efforts made to protect neutral rights .... 627 

2. The government of colonies : 

(1) Our experience with colonies ..... 628 

(2) Problems of organizing colonial governments . . 629 

(3) Problems of colonial control 630 



Topical Analysis xlv 

CHAPTER XXIX 

The Duties of Citizenship. §§ 631-636 

The twin virtues of citizenship : skctiom 

(i) Knowledge and action 631 

(2) The knowledge that makes for good citizenship . . 632 

(3) Knowledge and action as twin virtues .... 633 
Application of the twin virtues : 

(1) Analogies from experience ...... 634 

(2) The injustice of pessimism 635 

(3) Patriotism 636 



APPENDICES 

PACB 

A. The Articles of Confederation 533 

B. The Constitution of the United States . . . 542 

C. Prominent National Officials 560 

D. The States — Area and Population .... 562 

E. The State Constitutions 564 

F. The Suffrage 572 

G. The State Governments 582 



THE 
• AMERICAN FEDERAL STATE 

CHAPTER I 

SOME ELEMENTS OF POLITICS 
General References 

Hinsdale, American Governtnent. Introduction. A good summary. 

'^''^o\i.^c^'^t Rights and Duties of American Citizenship. Parti. An 
excellent elementary discussion. 

Wilson, The State. Historical and comparative accounts of ancient 
and modern States. Very useful. 

Bluntschli, Theory of the Modern State. The best book covering the 
whole subject. 

Crane and Moses, Politics. 

Burgess, Political Science and Comparative Constitutional Law. 2 vol- 
umes. Very valuable. 

Woolsey, Political Science. 2 volumes. 

Pollock, Introduction to the History of the Science of Polities. 

Sidgwicki Elements of Politics, 

Willoughby, An Examination of the Nature of the State. 

Smith, Theory of the State. 

Lieber, Civil Liberty and Self Government. 

McKechnie, The State and the Individual. 

Goodnow, Comparative Administrative Law. 2 volumes. 

Lalor, Cyclopedia of Political Science, under the different subjects 
treated. 

1. Development of Political Societies. — Since the earli- From small 
est historical periods men have been accustomed to associ- ^i"^?.^^ ^°'^- 

^ munities to 

ate with one another. At the first there would be only a large com- 
few who, because they were related by blood or lived near P'^^ *'"^^- 
each other, felt they were bound together on account of 

B I 



2 The American Federal State 

common interests and usually to avoid common dangers. 
In these primitive little societies there was ordinarily some 
one man who was looked upon as leader. Sometimes it was 
his age, sometimes his position by birth, and often his selec- 
tion by his fellows that made him the head man, but in 
every case the members of the society felt bound to treat 
him with respect and obey his commands. But they were 
also bound to one another and realized that each one owed 
something to every other because they were members of 
the same society. As these societies gradually became more 
settled, they began to have different and wider interests. In 
time this led to the union of several of the smaller societies 
in one large one, or in the absorption of several by the most 
powerful. Gradually families became clans, clans became 
tribes, and tribes became races, each with a government of 
its own. Everywhere the process was going on, the organiza- 
tion of the society becoming more perfect as the members 
became more civilized. With increase of population it was 
necessary to mark off the territorial limits that should sepa- 
rate one people from another. These boundaries tended 
to become more or less permanent, and the government as 
well became less subject to change. What changes occurred 
were due to the union or incorporation of these smaller 
political societies into larger ones till great nations were 
formed. 
Scientific use 2. Definitions of the State. — In modem times it has 
of the word been customary to call certain of these poUtical societies 
States. This name applies to any body of people occupy- 
Burgess, Pol. ^^a ^ fairly definite territory with an organized government. 
Science, I, who are in no essential subject to any outside power. Or 
'^^-S?- ^yg j^^y pyj ^j. briefly, and say that a State is an independent 

Biuntschii political society. In this sense, it would be incorrect to speak 
Theory of the of the State of New York or Ohio ; for while these " states " 
« *• ^5-23- g^j.g ^yithout question political societies, a great many interests 
of their members are cared for by a government outside the 

" state " or commonwealth. On this account, we must be 
The two uses 
in this book, careful not to confuse the two uses. In this book, when a 



Some Elements of Politics 3 

real State is meant, the word will be capitalized and used 
as much as possible in the singular, when a " state " like 
Massachusetts is spoken of, no capital will be employed, and 
the plural will be used. 

3. The Nation. — The word nation is frequently used as Distinction 
synonymous with State, but it really expresses a different ^'^^^" "^^ 

■' •' ' •' ^ nation and 

idea. In a broad sense, a nation includes all of the people the State, 

of any race. For example, the German nation in that sense Hinsdale 

includes not only the Germans living in the German empire, \ 9. 

but all other Germans in the neighboring States. But nation Burgess, Pol. 

is more commonly used in a limited sense. In that case, Science, i, 
the nation is the body of people having a common origin '"*' 

and living under a single government within a definite terri- Biuntschh, 

. , . , , , ^ ,. , . , , ibid., 86-109. 

tory. As used m a broad sense, the English nation would 
include all people of English blood anywhere on the globe, ?5^"^ ^^^ ,. 
but as used in the narrower sense, we may have an American tics, chap. ii. 
nation as well. What, then, is the difference between a 
modern State and the nation (using the word with limited 
meaning) ? It is this. The State is 2, political organization; 
while the nation is a body of people belonging to the same race, 
with practically the same ideas and interests. The modern 
State, it is true, is an organization of the whole people of a 
territory for political purposes, but the people do not neces- 
sarily form a nation. The population of almost every coun- 
try at the present time is made up of different race elements, 
and until these have been united, there can be no nation. 
But even after this occurs, we may not be able to speak 
with accuracy of the nationality of the people composing a 
State. So long as any locality or any section is more impor- 
tant to its inhabitants than the State as a whole, so long ast 
local or sectional interests predominate in one part of a \ 
country, perfect nationaUty is lacking — the nation is yet in the ( 
process of formation. For this reason we can realize with- C 
out difficulty that while modern States are usually nation 
states, the State has as a rule been developed earHer than 
the nation. 

4. Theories concerning the Origin of the State. — Men 



The American Federal State 



Three 

theories: of 
divine right, 
the contract, 
and the 
historical. 

Hinsdale, 
§§ 1 2-16. 

Wilson, The 
State, §$ 14- 
21. 



The earliest 

modern 

theory. 

Woolsey, 
Pol. Science, 
1, 196. 

Bluntschli, 
ibid., 286- 
292. 

Origin and 
practical 
failure of the 
contract 
theory. 



have spent a great deal of time discussing the probable origin 
of the State, and in trying to find out how States are really 
formed now. They have usually accounted for it in one of 
three ways : — 

(i) That the State is a divine creation, and that the sov- 
ereign rules by divine right. 

(2) That when people became tired of living in a state of 
anarchy without government, they came together and made 
an agreement or contract to live with one another under 
such a government as seemed best to them. 

(3) That there has never been a time when men have 
been without some kind of a government. That ages ago 
when a child was born, it came into a society already exist- 
ing, that the government was not a human but a natural 
institution not greatly affected by the wishes of men. The 
second theory emphasized the artificial character of the State, 
the third the natural; the one stated that the intelligence 
of man was the determining factor in forming the State, the 
other that the State is the product of natural forces, of which 
man is one, and of natural conditions. These three theories 
have exerted considerable influence upon the history of 
States during the last three hundred years, and the truth of 
each, so far as they explain the character of States to-day 
rather than their origin, can be best shown by briefly stating 
their history. 

5. The Theory of Divine Right. — The theory that exerted 
the greatest influence at the beginning of the modern period 
was that monarchs ruled by divine right. It was really an 
outgrowth of the mediaeval idea of the interdependence of 
the church and the State, and the sacredness of the office 
occupied by the head of each. It was used by its advocates 
to uphold the most absolute government of the monarch as 
late as the beginning of the eighteenth century. 

6. The Contract Theory. — As ecclesiasticism began to 
lose its hold on the people, the supporters of absolute mon- 
archy looked about for a firmer basis upon which to rest 
their doctrine. They found this in the idea of the contract, 



Some Elements of Politics 5 

claiming that when men became tired of Uving in a state of Burgess, 

anarchy, they came together and formally entered into a ' * "' ' '*' 

contract with one another and with some powerful person Bluntschli, 

as ruler to establish a government strong enough to protect ^ '' ^^^~ 

them. These theorists were in time, however, hoist on their 

^Voolscv 
own petard. For about the middle of the eighteenth cen- ^^^ j j' 

tury there arose a school of writers of whom Rousseau was 19s. i97- 
the leader, which reasoned that the originators of the con- Paignon in 
tract had established not an absolute but a popular govern- Laior, ill, 
ment, that later the rulers had seized powers not intrusted '^^^"^^ ' 
to them, and that the people had the right to rid themselves 
of the usurpers. This gave them a resting-place for the 
Archimedean lever which overthrew many established gov- 
ernments in the old world and the new during the latter 
part of the eighteenth centur5\ When, however, they tried 
to put these principles into practice, difficulties were encoun- 
tered. Instead of being able to establish such a government 
as men desired, they found themselves obhged to organize 
such a government as they could. The paper constitutions 
that France tried just before the opening of the nineteenth 
century proved the futihty of making any other government 
than one based on the poUtical experience of that State. 
The truth that lay in the contract theory was no more than 
this, — men may modify what already exists and change it so 
that it is better adapted to existing conditions. 

7. Natural or Historical Theory. — The failure of the The theory 
contract theory in practice led people to revise their ideas. 
It was seen that in all history societies and States have been Bluntschli, 
formed not by the contract of its members, but by growth ' " 
according to natural laws. That when these societies are 
formed, they have everywhere grown out of previous socie- 
ties. That when a government is formed the character of 
that government is determined far more by the character 
of the previous governments of the State than by political 
theories. This is clearly seen in our own history. At the ^^^ '^l"^* 

- - , , . . J . trated by 

time our state and federal constitutions were made, it was American 
found that only those parts of the government worked well experience. 



The American Federal State 



Social obli- 
gations 
natural and 
inevitable. 



which were not very different from similar devices used in 
the colonies. The government adopted (in 1 787-1 789) by 
the United States was a federal instead of a confederate or 
national government, because neither a confederate nor na- 
tional government was suited to the conditions ; and either 
if tried must have failed. Confederate government had 
been outgrown by the people ; but they were not ready for 
a purely national one. The political conditions prescribed 
the limits beyond which it was useless to go ; but within 
these limits political intelligence held full sway. 

8. Natural Theory and Social Duties. — A great many 
who favored the contract theory of the State beUeved that 
the society was largely a natural growth. It is needless to 
say that those who hold the natural theory of the State are 
much more inclined to look upon society as an organism. 
This tendency has been greatly strengthened during recent 
years by the vast increase of our knowledge concerning the 
processes of growth in plants and animals and the apphca- 
tion of the laws discovered to societies and States. It has 
therefore become quite customary to consider the State an 
organism, subject to laws of growth and decay and com- 
posed of parts which cannot be separated from the organism 
without causing the death of both. While we must be care- 
ful not to carry the analogy too far, there is unquestionably 
a great deal of truth in it. For instance, it gives us a very 
different conception of the social duties of the members of 
the State from that we should obtain if we believed the State 
was formed by contract. The member is a part of society 
not because he wills it, but because he was born into it. He 
may choose within certain limits in what State he will live, 
but he must live in some State. If he separates himself 
from one State without becoming a member of another, the 
first State protects him wherever he goes, and to that State 
he is responsible for his conduct. But he cannot become a 
" stateless man." He may shirk and refuse to perform his 
social duties, but he cannot get away from his obUgations to 
his fellows ; and, if his refusal to perform those social duties 



Some Elements of Politics 



injures the society of which he is a member, the society, 
through the government of its State, will protect itself by 
punishing him. 

9. The Kinds of States. — Theoretically considered, the 
best classification of States is according to the location of 
the sovereign or supreme power of the State which compels 
everything else in the State to obey it. If sovereignty re- 
sides in a single individual, we call the State a monarchy. 
If a class of persons limited in number have the power to 
exact obedience to their wishes, it is an aristocracy. When 
the whole people organized to form the State are sovereign, 
it is a democracy. 

10. Historical Forms of States. — History, however, fur- 
nishes us with a very different classification based upon no 
real principles. The earliest States produced in ancient 
times grew up with the city as its centre. The most perfect 
examples of the City State were furnished by Greece. In 
Rome the idea of the city State grew into the World State, 
but with the city at the centre. During mediseval times 
such States as existed were Feudal States, in which the 
territorial subdivisions were bound to the head of the State 
by feudal ties by no means strong. The last few centuries 
have witnessed the rise of Nation States. All of the mem- 
bers belong to practically the same race, and include most 
of the persons of that race. The unification of feudal States 
whose people belonged to any one race began in the 
fifteenth century with the nationalization of France and Spain, 
and has been practically completed in our own day by the con- 
solidation of Italy and Germany. In certain cases, complete 
unification under an absolute central government was impos- 
sible. Then the old confederacy was replaced by a nation 
State of a pecuHar form, called the Federal State. 

11. Federal States and Confederacies. — We must be care- 
ful to distinguish between Federal States and Confederacies. 
Both of these have a central government and local gov- 
ernments, each of which exercises certain powers of sov- 
ereignty ; but there is a very great difference between them. 



Classified 
according to 
the location 
of sov- 
ereignty. 

Blunts chli, 
iiJ/(/., 338-342. 

Burgess, 
ibid.,l, 6S-Z2. 



Ancient and 

modem 

States. 

Bluntschli, 
ibid., Book 
IV, chaps. 
II-IV. 



The location 
of sover- 
eignty in 
each. 



8 



The American Federal State 



Wilson, The 
State, 

1379- 

Sldgwick, 

Politics, 

512-53^6. 



Definition 
and exphi- 
nation. 

Crane and 

Moses, 

Politics, 

chnps. 

XVII-XVIII. 



Robinson in 

(1893). 785- 
808. 

Sidgwick, 
«^ /(A, 507-512. 



If we have a single sovereign which says what powers each 
government shall exercise, we have a sing/e State, a Federal 
State, or, as the Germans say, a Bundesstaat. If, liowever, 
sovereignty rests not in the large territory but in the smaller 
territorial divisions, we have many sovereignties, therefore 
many States, or a confederacy, a Staatodund. In other 
words, a confederacy is a union of States, and the central 
government is nothing more than the agent of those States, 
while in a Federal State there is a real central or united 
State, as well as a central government. In the same way 
we must be careful not to be confused when we have what 
is called a personal union — here we have one monarch for 
two countries, each with its own complete system of govern- 
ment. In that case we have two States, as, for instance, in 
England and Scotland between 1603 and 1707, or in the 
Austro- Hungarian monarchy to-day. 

12. The Federal State. — It is not easy to define the 
Federal State so as to distinguish it from the ordinary cen- 
tralized Nation State. It is not enough to say, as many 
authors do, that the sovereign delegates the exercise of 
certain powers to the central government and of certain 
other jiowers to the local governments. That is too vague. 
We can perhaps get a clearer idea from this explanation. 
In a Federal State there are two spheres of government : 
that left to the central government and that left to the local 
governments. The boundary between tliese spheres is foirly 
definite ; and, by law and custom, fairly permanent ; but it 
may be altered by the people of the whole State, who may 
also i)lace certain sovereign powers outside either sphere of 
government. Until this boundary is changed, however, all 
matters within the sphere of the local governments are com- 
pletely under the control of the people of the localities. In 
any case, the regulation of all matters of common concern 
belongs to the people of the whole State, who, by virtue of 
their power to alter the boundary between these two spheres 
of government {i.e. of changing the real constitution), are 
sovereign. 



Some Elements of Politics 9 

13. Characteristics of Modern States. — Attention has Democratic 
already been called to the most marked characteristics of sovfrnment 

•' under written 

modern States, namely, that each State represents a nation constitutions. 

organized for political purposes. In the organization we 

have usually not only a government but a constitution by \\ 1398-1414.' 

which the State places limitations upon the government. ^, 

^ . Bluntschh. 

Ordinarily, sovereignty rests with the people who rule Book i, 

through the exercise of popular influence and through the ^haps. i-vi. 
principle of representation. That is only another way of 
saying that modern States are usually democratic. This 
democracy has been of late growth, even in this country, 
and is very imperfectly developed, especially on the con- 
tinent of Europe. 

In no way does the State of to-day differ more from those The citizen 
of the past than in its relation to its members. In the '" ^"^'^"' 

* and modern 

ancient State only the privileged few were citizens, while states. 
a vast majority were not even in the position of subjects 
without citizenship — they were slaves. Yet the citizen was 
never more than a part of the machine. He lived for the 
State, which absorbed him and controlled him. It was only 
later that the citizen was really recognized to be an individ- 
ual. In modern times the right of individuality as well as 
that of citizenship is admitted. The citizen is a part of the 
organism called the State. Under normal conditions, he 
cannot place himself out of relation to his fellow-citizens ; 
but unless his right to life, liberty, and property interfere 
with similar rights in society at large, they are not denied to 
him. In other words, the modern society realizes that the 
interests of the individual and the State are not necessarily 
identical, but allows each free scope except where their 
interests clash, then the individual must yield. 

14. Sovereignty. — We have already seen that sovereignty Characteris- 

resides in the person or persons in the State who have the ^''^^- suprem- 
acy and 
power to exact continued obedience from all other parts of indivisibility. 

the State. Its most important characteristics are: (i) it is „• j , 

supreme within the boundaries of the State; if not, it is \\\. 

inferior to some other power and that power is sovereign. 



lO 



The American Federal State 



Burgessi 
ibid., 
I, S3-S6. 



Powers of 
sovereignty. 



In law and in 

American 

history. 



Cf. Lowell, 

Essays on 
Govt., 189- 
222. 



The constitu- 
tion in gen- 
craL 



(2) It is " one and indivisible." There cannot be two 
supreme powers in one State. We may, however, find two 
parts of the State struggling for recognition as the sovereign, 
when it is practically impossible to determine for the time 
which is sovereign. If we accept such a solution for a large 
part of our early history, some difficulties disappear. 

The more important powers of sovereignty are : ( i ) making 
and altering the constitution of the State, which includes 
{a) determining the form and the real powers of the gov- 
ernments, and {b) determining the relation of the citizens to 
the government and to the State; and (2) delegating to the 
different governments in the State the powers deaUng with 
internal and foreign affairs to be exercised by each. While 
it is expected that this delegation of powers is more or less 
permanent, it is always subject to change through the right 
of the sovereign to alter the constitution. It is thus seen 
that the sovereign is the real power of the State, that it is 
above the governments creating and controlling them, and 
that to it the governments are responsible. It may never- 
theless be a part of one of the governments. 

1 5 . Disputes over Sovereignty. — The idea of sovereignty has 
been a cause of dispute since the term was first used. These disputes 
have unfortunately been both legal and political in their character, 
and great state questions have been fought out by the advocates of 
different schools. In our own history the question was the location 
of sovereignty in the people of the nation or the people of the States, 
As Professor Johnston well said, "The word people has been the 
political X of American history." The classical contention that 
sovereignty is unlimited, one and indivisible, has been assailed from 
many quarters. So high an authority as Professor Bluntschli denies 
that it is unlimited, and the fact that it is impossible to find a case in 
history where the sovereign powder has been used entirely without 
limitations makes it advisable to substitute the word supreme for the 
word unlimited. That sovereignty is "one and indivisible" still meets 
the approval of the best writers, but some attempts have been made 
to prove the possibility of a dual sovereignty. 

16. Written and Unwritten Constitutions. — Every civil- 
ized State has some kind of a fairly definite political organiza- . 



Some Elements of Politics 1 1 

tion. The character of that organization, including the relation 

of the State to its subdivisions and its citizens, the form and 

powers of government, and the relation of the government Sidgwick, 

to the citizens, may be embodied in law, in custom, or in ^°^^^^"< S4o- 

both. In any case we may give the name constitution to 

those laws or customs that determine the character of the 

State. But it is customary to use the word in a much more 

limited sense, and to distinguish between written and un- Distinction 

written constitutions. When there is a single fundamental benveen writ- 

ten and un- 
law or set of laws that regulate either expressly or by impli- written. 

cation the form and powers of the principal governments, 
the relation of the State to its subdivisions and the liberty of 
the citizens, we say that the State has a written constitution. 
Otherwise it is customaiy to speak of the constitution as 
unwritten. It will be readily seen, however, that no writ- 
ten constitution is likely to cover, even in the most general 
terms, all the subjects that belong to a constitution proper. 
In consequence, every State has an unwritten constitution 
whether it has a written one or not, although of course that 
unwritten constitution is not so important as it would have 
been had no written constitution existed. 

We may compare the written constitution to the skeleton 
of an animal, which within certain limits determines what 
the animal shall be, though it does not tell us its color, the 
strength of its muscles, or much of its real efificiency. While 
the skeleton remains the same, the animals of that class 
must have many characteristics in common ; but the degree 
of vitality the animal possesses, and the amount of work it 
can do, depends more on its individualit)\ 

This relation of the wTitten and unwritten constitutions Relation of 
to each other may perhaps be made clearer by reference the unwritten 
to the United States. In the Constitution of 1787 and its S°f^'Tf'?^ 

' ' of the United 

amendments, the form and powers of the central govern- States to the 
ment are given, Hmitations upon the powers of the states 
(commonwealths) are enumerated, and certain rights of 
citizens are placed beyond governmental interference. But " '' ^^°' 
this written constitution only by implication recognizes the 



written Con- 
stitution. 



12 



riir Afiiniatii ludanl State 



Character- 
IstlcH of n 
moilnn con- 

Mliiillon. 



til stability. 
535-540' 



existence of a Ketlcnil State, makes it possijjle for the State 
to 1)C cohIioIUmI oillicr by the wliolo people or by one class, 
gives only the "paper powers" of the (leparliiicnls of the 
government and ciimiol crcale real i)o\ver for ilu-m. All 
ol Ihcsc stibjecls and many others belong tu our luuvrilten 
constiliilion, and are regiiialed riihcr by slaliile law or by 
cnstom. For example, cominonucalili laws have recognized 
the f'ut that the Slate and liic j;overmnenl have become 
democratic ; custom has made the |)residenlial electors not 
men of independent judgment, but parts of the machinery 
«)f political parlies. The changes in the unwritten constitu- 
tion are nmch loo numenxis lo be mentioned here, but 
the general charactci of the ciiaiiges are given in chapters 
VI-IX. 

If we were to give the most iniportaul characteristics of 
a modern eonslituiion, tl\c lollowing would probably be 
named : it is made by the peo|)le ; it gives the location 
of sovereignty ; It regulates the relation of the State to its 
subdivisions and its citizens ; it gives the form and the 
powers of the governments ; it determines the rights of the 
citizens. 

17. Advantages of a Wrilten CouHlitution. If all Stales 
have unwnUcu constitutions, we may well ask. what is the 
advantage of having a written constitution in addition? As 
all States are changing, a wrilten conslilution helps lo give 
d<Miniteness and pernianenee lo its political institutions. 
It le.ncs less \o the government, whicli might otherwise 
aller Ihe constitution for its own ailvantage and to the in- 
jury of the Slate. The wrilten constitution is always a 
pnuif of the fad that sovereignty no longer resides in the 
govermnenl but in the jieople. The recent growth o( the 
wrilten constitution is undeniably due lo the san\e condi- 
tions that have produced modern democracy. Hut while 
it protects democracy, it himlers the full application of 
democratic ideas in the governmenl. In other wonls, the 
great advantage of the wrillen constitution. iAjfii/ity, is un- 
avoidablv Cvnineeteil with the great disadvantage, inflrxi- 



Some liloticnts of Politics 13 

bility. The attempt to remove this disadvanl.igc by making 
the constitution easily altcral)k*, as in I'ranco, piactirally 
destroys the real virtue of the written constitution. Yet it 
must be admitted that a written constitution ot the most 
general kin<l tliat (;an be changed witli coinparalivc case, 
and supplemented, us it always is, by an unwritten constitu- 
tion that adapts itself to tiie needs of the time, is the best 
form for the ordinary Slate. 

18. Development of Government. — In primitive jwlitical simpilcUy 
communities, the government was of the most rudimentary ""^''"''y 

' " ' jjovtnniiient. 

character. All of the things tliat needed .iltention were 

cared for either by a single person or by an ;:;.;, cinbly of the 
men. The former was something like a perm.nK nt r.ovcrn- Wiinon. »^/</„ 
ment, because the ruler was a |)crmanent olli< lal ; hut tlic *' *'"^" 
latter could not be contintialiy in session, and if they wislied 
to have anything done, they usually (ailed upon an individ- 
ual who did what was asked and then again became an 
ordinary member of the comnuuiity. Thus there was no 
permanent office. It was like the characterless amceba 
of which any part may be used at one time for gathering 
food and at another for locomotion. 

But it was the same with political institutions as it was Srpaniildn 
with animal life. Development was from the simi)le to the '"'";'''l"wt- 
complex, until in the highest forms, one organ performed 
a certain function and no other. As society advanced in 
civilization, the need of some permanent set of persons to 
keep order, to settle disputes and look after other matters, 
was more felt. Here we have tlu; first real governmental 
organization, but with so little differentiation of duties that 
any one of these magistrates exercised judicial, executive, 
administrative, and legislative jjowers. Still further increase 
of duties made se|)aration of these powers more or less 
necessary, as all could not be performed by one person. 
But imlil the eighteenth cc.-ntury the confusion (jf these de- 
partments was common, and tlie exercise of all the govern- 
mental powers by European monarchs was the rule. With 
the publication of Montesquieu's Esprit des Lois (1749) 



14 



The American Federal State 



Government 
the agent of 
the State, but 
both reflect 
political and 
social condi- 
tions. 

Burgess, Pol. 
Science, 1,68. 

Moses, De- 
mocracy and 
Social 
Growth, 19- 
22. 



and Blackstone's Commentaries (1770), an effort was begun 
to separate completely legislative, executive, and judicial 
functions. As progressive political societies believed this 
separation essential to good government and to the preser- 
vation of liberty, the attempt was made both in America 
and in Europe to put the principle into practice. The fact 
has been overlooked that with all organisms the increase 
of the number of organs has been accompanied by a corre- 
sponding dependence of each organ upon every other. Yet 
the appHcation of this idea of separating the departments 
has undoubtedly given us the highest form of government 
yet produced. 

19. Government and the State. — It must be borne in 
mind that government is no more the State than the heart 
and lungs of an animal are the animal itself. The govern- 
ment is the chief set of organs of the State — the agent that 
carries out its will. But while the government is not the 
State, the character of the government depends very much 
on the character of the State. You cannot have the same 
kind of a government in Persia and America. A democratic 
government cannot be developed or maintained in any 
society where classes are distinctly separated from one 
another. Neither is an aristocratic government possible 
where all persons are on a level — possess social and ma- 
terial equahty.' But we can go further. The State and the 
government grow up together. Because the State is nothing 
more than a portion of society organized in a particular way, 
it is constantly changing. Those changes will naturally be 
reflected in the government. Any change that is made in 
its government which does not represent a change in the 
State will lead to one of two results. Either it will decay 
because it is useless ; or, if it can produce a corresponding 
change in the State, it will survive. Yet we ought to realize 
that we can almost never produce a change in society by 
a mere change in the government. We can then see the 
uselessness if not the folly of altering the government with- 
out taking into account the social condition and the political 



Some Elements of Politics 15 

experience of the people ; and we ought to appreciate the 
fact that a society changing as rapidly as ours in the United 
States is unlikely to have the same kind of a government in 
different periods of its national history. 

20. Monarchies. — Practically all the great States of to-day Absolute and 

have either a monarchical or a republican form of govern- constitutional 

° monarchies, 

ment ; but there is more real difference between certain abso- 
lute and constitutional monarchies than there is between a Biuntschii, 
monarchy Hke Great Britain and a republic like France. "^^'^••431-439. 
The only thing necessary for a monarchical government is 
that its head shall be an hereditary sovereign ; but if the 
powers of that sovereign are limited by either a written con- 
stitution, or by statutes and customs as binding as such a 
constitution, the government is really in the hands of the 
people's representatives. In the absence of such limita- 
tions, the monarchy is called absolute ; for the power on the 
throne or behind it is not within popular control. 

21. Democratic Government. — Of popular governments Pure and 
there are two forms, the pure democracy, and the representa- JfP''^^*^"**" 

' -^ -" '^ tive democ- 

tive democracy or the republic. In a pure democracy the racies. 
assembly of the people does all the governing, and it is readily Biuntschii 
seen that only very small communities in which practical «^«£?., 469-485. 
equahty exists can ever have such a government. No such cf. Moses, 
restrictions exist for a republic in which the people appoint Democracy 
representatives who compose the government. The republic Qrowtk 
is of course a much higher product of political evolution chap. I. 
than the democracy proper, but it is necessarily less a gov- 
ernment of the people and by the people. It does not 
require social or material equaUty of the people, though 
marked inequalities or classes are a continued source of 
danger. It does require a high standard of social character, a 
general diffusion of education, and a correct ideal of patriotism 
for its maintenance and development. 

22. Centralized and Dual Governments. — Governments The relations 

may be differently classified according to the concentration of central 
r 11 • ■ ^ ^ ^ • . , and local 

01 all governmg powers m one body or their separation be- government. 

tween two governments. When the localities are entirely 



1 6 The American Federal State 

Burgess, Pol. Subordinated to the national government, the government of 

Science, II, j^g gj-j^tg jg g^jj ^q y^^ centralized. If, however, the locahties 
4-7. 

have a sphere of activity of their own as in confederacies or 

Federal States, the term dual government is used. The 
tendency since feudal times has been to make the central 
government more and more powerful, as the State itself 
became more centralized. Just as the centripetal or inte- 
grating forces of the State have triumphed over the centrifu- 
gal or disintegrating forces, so the central government has 
tended to absorb the local governments. Whether the 
effort made in the Federal State to maintain a balance 
between the national and the commonwealth governments 
will prove to be futile, history will decide. If with the 
powerful aid given by the strong local spirit in America and 
a gonstitution of extreme rigidity, the United States cannot 
hold in check the forces of centralization, we may well come 
to the conclusion that Federalism is after all but a transitory 
phase in the development of centralized States with power- 
ful central go^•ornments. 
The relations 23. Parliamentary and Presidential Governments. — Na- 

of executive \xQXiQ\ ffovemments whether centralized or not, either in 

and legisUi- '^ 

live. republics or monarchies, may be parliamentary or presiden- 

Bureess ibid ^^'^^* ^^''^c^e the departments are separated as much as 
II, 11-16. possible so that the executive and the legislative branches 
are very little dependent upon each other, as in the United 
States, we have the presidential form. But if emphasis is 
laid upon the interrelation of these two departments, upon 
the fact that they work together, the executive being a part 
of the legislature, the real controlling part, yet always the 
agent of the legislature, as in Great Britain, the government 
is parliamentary. The former is the outgrowth of the idea 
of "checks and balances" prominent among political scien- 
tists at the time wlien popular government was in its infancy, 
and the protection of tlie individual from the tyranny of the 
government occupied a more prominent place in the 
thouglits of men than the efforts to make government 
efficient. The theory upon which it seems to be built is 



Some Elements of Politics ly 

that too much government is a worse evil than too Httle — a 
theory which contains a large element of truth in a modem 
democracy as well as in an absolute monarchy. 

24. The Legislative Department. — Whatever may be the Proper func- 
relation of the different departments, at the present time all t'onsofthe 

1 1 /• 1 • 1 • , • legislature. 

modern States recognize the need of havmg legislative, 

executive, and judicial departments. It is difficult to define i^^J^ll' jo^ 

the exact functions that ought to be performed by each ; but 130. 

a few general statements may be of value. The conduct of Sidg^vick, 

political societies is governed bv certain rules which the bulk ^''^'^*"> 

324-332. 
of the society tliink necessary to its existence and proper for 

its development. These rules were at first purely in the 
form of customs ; but, as society became more complex, 
they were committed to writing. Until within two hundred 
years these rules were not numerous, but the government 
was able to use its power arbitrarily in enforcing them. 
More recently the attempt on the part of the people to 
restrict this arbitrary power has led them to place in the 
hanils of their representatives the power to alter these laws 
and make new ones. This has led the legislative depart- 
ments to enact a great many laws, most of them dealing with 
special objects, for the purpose of reconstructing society and 

of carrying out certain plans ; whereas the true duty of the 

legislative department is rather to lay down general rules for „. 
governing the conduct of society and to refrain from laying ■ 
down such rules unless the actual needs of the society at the 
time require that they be embodied in the form of statutes. 

25. The Executive Department. — If, then, the function Applies the 

of the legislative department is to see that the right laws are 'aw to special 

. , cases. 

made, and at the right time, the proper function of the 

executive department is to apply these laws to any special Sldg^vlck, 

^ rr .f f r Politics, 221- 

cases that come up. If an individual ignores a law, the 324. 
executive must see to it that the individual obeys the law. 

Burgess, 
or IS punished. If a law is made that the revenue of the ,(>/i/.,ii, 307- 

State shall be derived from taxes or certain imports, it is the 3^9- 

duty of the executive to assess those goods and collect 

the tax. To administer the laws in a State as complex as 

c 



iS 



The American Federal State 



Adjusts dif- 
ferences in 
cases affected 
by the law. 
Burgess, 

366. 



The individu- 
alistic and the 
socialistic 
theories. 

McKechnie, 
State and the 
Individual, 
171-269. 



ours means that an infinite variety of details connected with 
a vast number of important subjects must be attended to. 
And just here is the real danger that the individual will 
suffer restriction of his rights unless the executive, which 
must be strong to be efficient, is not properly controlled. 

26. The Judicial Department. — If one individual inter- 
prets a law in one way, and another individual interprets the 
same law differently, so that the acts of the two individuals 
bring them into conflict, it is necessary that there should be 
a department of the government to give an authoritative and 
final interpretation of the law which the executive shall nia^ 
all obey. Since as much depends upon the interpretation 
of laws as upon the laws themselves, the judicial department 
is in a real sense a law-making body. 

27. Theories concerning the Office of Government. — It 
has always been and always will be a mooted question as to 
what interests of the society should be under the care of the 
State through the government. People might be divided 
into two classes according to their views on the subject, 
the individualistic and the socialistic. The„ individualist 
beheves the government should do just as little as possible 
for the society, and should not interfere with the individual 

jexcept in cases of necessity. The extremist goes so far as 
to say that if the government protects the citizen from his 
neighbors and his enemies, it has done its full duty. The 
socialistic school claims the needs of all are above the rights 
of the individual, and that the government should do every- 
thing in its power not only to protect but to develop the 
society. The extreme sociaUst interprets this to mean that 
land should be held for the benefit of all, that the govern- 
ment should operate the telegraph and the railway lines, 
and in many cases favors the governmental control of all 
capital. The communist goes a step further and asks that 
the government hold all jpropertj, capital included, for the 
common benefit. Very few people hold any of these extreme 
views. The vast majority are much more moderate. We 
may class those who think the government is already doing 



Some Elements of Politics 



19 



more than it ought as individuaUsts, while those who beheve 
the sphere of government ought to be enlarged belong to 
the sociaHstic school. 

28. Functions of Government. — It is not easy to deter- 
mine where the line should be drawn, as the limits of govern- 
mental action depend so much on changing conditions and trant 
on the amount of governmental action to which a particular 
State is accustomed. Wilson, in his book on The State, 
divides the functions of government into two groups 
(§§ 1478-1480) : I. Constituent, and II. Ministrant. 

"I. The Constituent Functions: 

(i) The keeping of order and providing for the protection 

of persons and property from violence and robbery. 
(2) The fixing of the legal relations between man and vpife 
and between parents and children. 

The regulation of the holding, transmission, and inter- 
change of property, and the determination of its 
liabilities for debt or for crime. 

The determination of contract rights between indi- 
viduals. 

The definition and punishment of crime. 

The administration of justice in civil causes. 

The determination of the political duties, privileges, 
and relations of citizens. 

Dealings of the state with foreign powers: the preser- 
vation of the state from external danger or encroach- 
ment and the advancement of its international 
interests." 



(3) 



C4) 

(5) 
(6) 
(7) 

(8) 



Two classes : 
constituent 
and minis- 



" II. The Ministrant Functions. — It is hardly possible to give a Wilson, The 
complete list of those functions which I have called Ministrant, so State, 
various are they under different systems of government. The following 
partial list will suffice, however, for the purpose of the present discus- 
sion: 

(i) The regulation of trade and industry. Under this head 
I would include the coinage of money and the establish- 
ment of standard weights and measures, laws against 
forestalling and engrossing, the licensing of trades, etc., 
as well as the great matters of tariffs, navigation laws, 
and the like. 
(2) The regulation of labor. 



§§ iso4-i5ia, 

Wanbaugh, 
in At. Mo., 
LXXXI 
(1898), 120- 
130. 



20 



The American Federal State 



(3) The maintenance of thoroughfares, — including state 

management of railways and that great group of under- 
takings which we embrace within the comprehensive 
term ' Internal Improvements.' 

(4) The maintenance of postal and telegraph systems, which 

is very similar in principle to (3). 

(5) The manufacture and distribution of gas, the mainte- 

nance of water-works, etc. 

(6) Sanitation, including the regulation of trades for sani- 

tary purposes. 

(7) Education. 

(8) Care of the poor and incapable. 

(9) Care and cultivation of forests and like matters, such as 

the stocking of rivers with fish. 
(10) Sumptuary laws, such as ' prohibition ' laws, for example." 

" These are all functions which, in one shape or another, all gov- 
ernments alike have undertaken. Changed conceptions of the nature 
and duty of the state have arisen, issuing from changed historical 
conditions, deeply altered historical circumstance; and part of the 
change which has thus affected the idea of the state has been a change 
in the method and extent of the exercise of governmental functions; 
but changed conceptions have left the functions of government in kind 
the same. Diversities of conception are very much more marked than 
diversities of practice." 



Sphere of 
State action 
must be 
enlarged 
slowly. 

Willoughby. 
Amer. Citi- 
zenship, 53- 
62. 

Wilson, The 

State, 

§§ 1521-1535- 



29. Limits of State Interference. — It is not possible to 
lay down any set rules according to which a State shall 
decide whether it ought to perform any particular " minis- 
trant " function. The wisdom of such an action must depend 
on the history and the present needs of the State, upon the 
extent of the functions already exercised, and the efficiency 
of the governmental machinery. Yet we can readily see that 
as a society becomes complex, the government must control 
and regulate many more actions of the citizens in order to 
fully protect them. For example, no one doubts the right 
of the government to pass and enforce all proper measures 
for the health of the community. This may lead in crowded 
cities to regulations for individual householders that are very 
obnoxious. Dealers may have to submit to inspection of 
goods which might injure members of the community, and 



Some Elements of Politics 21 

factories are continually under supervision to see that the 
health of the operatives is in nowise endangered. Too little 
regulation is like too much a mark of poor government. 
The State must see that there is just enough, and that it is 
never arbitrarily applied. Yet it will be better for a State to 
leave something undone than at one stroke to alter its policy 
and undertake important duties for which it has no proper 
training. It will not pay a State to perform functions which 
may seem necessary, but which can be performed only at a 
great loss of individual freedom. 

30. Growth of Law. — As has already been stated, in early From custom 
times governments were much less complex than at present, *° statute and 

° I x- > constitu- 

and we cannot separate them into three or four departments, tionai law. 
The same person or body made the laws, saw that they were -wiison Tke 
observed, and told what they meant. But the community state, 
was so small that it was not necessary to make many laws, ^^ 1416-1443. 
and as a matter of fact the law-making body contented 
itself with declaring what was law ; in other words, what the 
custom was in that community. So all early laws were little 
more than an embodiment of the customs that were observed.. 
As the community developed, separate rulers or magistrates 
were appointed to apply the law. As the law was not often 
written down, the magistrate was inclined to depend as 
much on his own judgment as on the law. This led to 
great abuses, the abuses led to protests, and the protests to a 
written law. To this written law were added in time the 
laws or statutes passed by the law-making body. If the law- 
making body was restricted by some great laws that were 
recognized as being at the very foundation of the State, these 
great laws were called constitutional. 

31. Law, Government, and Liberty. — We often get the Conditions 
idea that law and Hberty (civil liberty), or government and under which 

T, ^ ,. , , , , law becomes 

liberty, are contradictory terms, so that the more law or the ^ost favor- 
more government we have the less liberty there must be. Is able to 
this idea correct ? If we were to mean by liberty that each ' 
man had a right to do what is right in his own eyes, we see Burgess, Pol. 
that law interferes with liberty. But for each man or any man -^^^Z^L ' 



22 



The American Federal State 



Human law 
must con- 
form to 
natural law. 



to do as he pleases is not liberty, since if one man were to 
do that, the liberties and the rights of others would neces- 
sarily be restricted. Liberty cannot exist then unless there 
is law to control those who would infringe upon the rights 
of others. But if too little law means anarchy and not 
liberty, how shall we determine how much law and what 
kind of law is needed, so that there shall be as much liberty 
as possible. In the first place, both the amount and the 
kind of law must depend on the condition of the society for 
which it is made. In our complex civihzation, we need a 
much larger number and very different laws from those 
required by a primitive agricultural community. But in 
each case it is the greatest good of the greatest number that 
will on the whole give the fullest hberty. This means, of 
course, that the hberty of the individual may be sacrificed 
to the common good, and that social liberty is above indi- 
vidual liberty. , 

In the second place, in order to secure the greatest good 
of the greatest number, the law must conform not only to 
the condition of the society as it then exists, but should be 
in conformity with natural law. Any statute or constitu- 
tional law that is artificial, that runs counter to the political, 
economic, or social laws according to which the universe 
is governed, will not only restrict liberty, but will injure the 
society and must in time give place to a truer law. It is 
true in political science, as in everything else, that the nation 
is free not when it tries to escape the operation of law (for 
that it cannot do), but when it understands the universal 
laws of nature and acts in accordance with those laws. The 
nation that tries to make itself rich by making its neighbors 
poor, as many attempted on a grand scale two or three cen- 
turies ago, is like the man who tried to Hft himself by his 
bootstraps. If a nation, through law, tries to retain a system 
of society and government that the State has outgrown, rev- 
olution will overthrow the existing order of society. If it 
clings to a false economy which is a survival of past ages, the 
" law higher than the Constitution " will surely assert itself. 



Some Elements of Politics 23 

32. Kinds of Law. — The two most prominent subdivisions Divisions of 
of law are into public and private law. The former deals P"^'''^ ^"'^ 

■^ -^ _ _ private law. 

with all laws regulating the actions of States or their govern- 
ments either in relation to each other or to individuals : the ^^'^^o"- "^^^ 

' state, 

latter treats of the relation of one individual with another. ^ 1216-1226. 

An important branch of public law is international law, „,.„ 

, . Willoughbv, 

which is not made by any legislature but is merely the set Amer. cui- 

of customs recognized among civilized nations as suitable "^"^f^'P. 
for governing their relations with one another. Constitu- yu^ 
tional and administrative law are also parts of the public 
law. One deals with the principles of government, the 
other with details. Criminal law really belongs to public 
law as it defines crimes against the State and makes pro- 
vision for the punishment of persons violating the law, but 
it is not usually separated from other parts of public law. 

Private law covers a multitude of subjects more or less 
connected with our everyday affairs. It regulates the hold- 
ing and disposal of land and other property, the relation of 
parent to child, and of employer to employee. It deals 
with the laws of marriage and divorce, of all kinds of con- 
tracts, of bequest and inheritance. If an individual buys or 
sells anything, makes a written agreement with any one for 
a particular purpose, or seeks a legal remedy for an injury 
done, he does it in accordance with the private law of the 
State. 

33. The Kinds of Liberty. — We should distinguish dif- Four kinds 
ferent kinds of liberty. When we use the word we ordi- of liberty. 
narily refer to civil liberty, freedom from arbitrary personal 
restraint and the right to enjoy life and the use of property. 
Political liberty necessarily deals with the part played in the 
government of the community. Religious liberty is found 

where any sect has the right to worship in its own way. AVe 
find industrial liberty where the worker does not have his 
place of residence and occupation picked out for him. 
There is no necessary connection between political and 
the other kinds of liberty. We naturally expect a greater 
degree of all kinds in a society that is self-governing, but 



24 



The American Federal State 



Some ideals 
of equality. 

McKechnie, 
The State and 
the Indi- 
vidual, chap. 
XXIII. 



The charac- 
ter of a soci- 
ety is ex- 
pressed in its 
institutions. 

Cf. Moses, 
Dem. and 
Social 
Growth, 
chap. I. 



Both are 
forms of 
growth. 



liberty is rather an evolution of civilization than a product 
of democracy. If we compare Anglo-Saxon England with 
Rome or with any modern State, we shall find that while 
there may have been more poUtical freedom, there was less 
of almost all other kinds. 

34. Kinds of Equality. — It has been one of our favorite 
maxims that " all men are created equal," but in what re- 
spects individuals are equal does not readily appear. Cer- 
tainly in personal qualities the greatest difference exists. 
Theoretically, all are equal before the law. As far as pos- 
sible, all have equal opportunities. For centuries we have 
been drifting toward social equality, but only among whites. 
The ideal of democracy has been political equality, but with 
few exceptions the equality has not crossed sex lines. If 
equality is a goal we attempt to reach, humanity seems fore- 
doomed to disappointment. Liberty and equality cannot 
live together. Given the same chance and perfect freedom 
of action ten men that start together will invariably be found 
in a short time to have drifted apart. We cannot make 
men equal except by bringing all to the level of the lowest. 

35. Society and its Institutions. — As society has devel- 
oped, there has gradually been evolved not only a social 
system and a government, but religious and business organi- 
zations which have in time become more or less fixed and 
to which the general name institutions may be given. All of 
these are but outward evidences of the forces at work in the 
society. Taken together, they are less than society, yet they 
offer the best means for studying it, as they are tangible and 
more real. But these institutions do more than show the 
character of the society, they tend to keep the society in the 
same stage that it was when the institutions were produced. 
This is especially true of the more complex institutions, 
which do not readily change with the natural and necessary 
changes in society. 

36. Evolution and Revolution. — Nothing can prevent 
changes in any society. Growth is one of the laws of its 
being. This may be more or less rapid, but it is constant ; 



Some Elements of Politics 25 

in other words, social etwlution is taking place all the time. 

In a narrower sense we sometimes speak of social evolution 
only when the change in society itself has produced a change 
in the social institutions, i.e. in the relation of classes to 
each other, or of the members to one another. \Mien this 
social evolution leads to an altered form of the State wliich 
is adapted to the new society, and to suitable changes in the 
government and in the law of the State, we call the change 
political evolution. But if the real growth of the society 
leads to none of these changes in the relation of the classes 
to each other, to no change in the government or the laws, 
a time will come when the new societ}^ will demand that the 
old institutions be cast aside and new ones substituted. If 
for any reason this change is refused, or if the old institu- 
tions cannot be adapted to the new society, the new society 
asserts itself, abolishes the institutions it has outgrown, with 
perhaps much that was valuable in its past experience ; and, 
often after terrible suflfering and bloodshed, estabUshes a new 
order of society, a new form of government, and a new set 
of laws suited to its present conditions. Such a change is 
called revolution. Both evolution and revolution are forms 
of growth, for a pai'tial ei-olution always precedes revolution. 
But revolution is wasteful. It often fails to establish the kind 
of government and the order of society the new State really 
needs ; and the next few years are frequently spent in adapt- 
ing the new forms to the conditions of the new State. 

37. Slavery. — The history of slavery shows how an insti- An example 
tution mav at one time be a means of developing a society, °^ ^ institu- 

' i. o - ^jQjj once 

when at a later penod it hmders progress. Slaver}' was a useful, later 
distinct advance, both from an economic and from a humani- ^ curse, 
tarian standpoint, upon the older custom of putting to death 
captives in war. It made the first real States possible because 
it produced a class that performed those duties most necessary 
to keep people alive, while it left the conquering race free to 
devote its energies to the problems of war and government. 
In the middle age of ci\-ilization, the harsher forms of 
servitude disappear, and the general system of land tenure 



26 The American Federal State 

upon which society rested snbstituted for slavery a kind of 
land serfdom or villeinage. But in all tropical countries 
slavery continued to exist, and was looked upon as beneficial 
to the lower as well as the higher classes, since it raised 
the foraier from a condition of barbarism. Feudalism was 
not transplanted to America, but the semi-tropical condi- 
tions of the Southern colonies led to the development of the 
system of African slavery. There is no doubt that this form 
of servitude was almost universally considered beneficial to 
the negro, to whom a real service was rendered by placing 
him under christianizing and civilizing influences. There is 
no more doubt that the economic and political development 
of the South during the colonial period was greatly aided by 
slavery. But it produced social classes, it was adapted only 
to the ruder forms of industry — in brief, it could not adapt 
itself to the new social conditions of which the American and 
French revolutions were not only evidences, but productive 
forces. Like feudal serfdom, American slavery stood in the 
path of progress, sought to check that progress, and was 
destroyed in the attempt. 

38. Mortality of States No lesson of historical development 

stands out in greater prominence than this, — no State has been or is 
likely to become immortal. Like all organisms, States show a period 
of early vigor and strength, during which they are assuming a definite 
form; a second period when all of their forces are well under control 
and used to the best advantage; and a final period of decay when their 
vitality no longer suffices to withstand the attacks of internal and exter- 
nal foes. These periods vary greatly in length with different States. 
The first may be as brief as that of the Arabian empire in the Middle 
Ages, or Spain at the beginning of the modern period, or it may be as 
long as that of Russia. All of the periods may be as long as those of 
Rome, each of which covered centuries. We seek to learn why these 
States fail, and then draw comparisons between them and ourselves, 
forgetting that their social system and political organization was prob- 
ably as well adapted to their needs as ours are to solve the much more 
difficult problems that confront us. We are barely out of the first 
period of our development and may reasonably look forward to a long 
and promising career of national success; yet there is every reason to 
believe that the second period must give place to the third. 



Some Eleynetits of Politics 27 

39. Some Tendencies of Modern Development. — The Political 
civilized world has witnessed many changes the last century democracy. 
or two. Society is being reconstructed on a non-feudal 
beisis whose fundamental doctrine is equality. Democracy 
represents the political and to some extent the social side 
of that reconstruction ; but we have seen that democracy is 
still in its infancy over most of the globe. The democracy 
has transformed governments and has fostered new humani- 
tarian ideas, but it has not been able to check forces Hke 
centralization, colonization, and militarism. 

Economically, civilized society has advanced from the Economic 
agricultural to the industrial stage. While modem industry consohda- 
has helped to produce free labor, it is not favorable to 
economic equality. It demands great concentration of 
capital for the maximum of production wth the minimum 
of effort, but it has failed to distribute the results of that 
production according to modern ideas of justice. 

Another phase of modern development is the growth of Nation 
nation states. Nationalities are becoming self-conscious, s^**"- 
and in case they have no common political organization, 
have everyAvhere sought to form States that would express 
that nationality. The success of the latest products of this 
movement — Germany and Italy — seems assured ; but 
farther east, especially in Austria and the Balkan states, 
there are national problems that will test the skill of 
Europe. 

Many as are the problems yet unsettled, the difficulties The changes 

that seem insoluble, history tells us that our present civili- represent 

progress, 
zation is its highest product. The path of development 

may be as tortuous as the course of the lower Mississippi, 

but humanity is coming nearer and nearer its goal. The 

apparent turns backward may prove, as did the French 

Revolution, a means of finding a new and better outlet 

to the sea of a more perfect civihzation. 



28 TJie American Federal State 

QUESTIONS AND REFERENCES 
The State (§§ 1-13) 

a. Cf. the definitions of the state ; nation and folk in Burgess, 
Woolsey, Crane and Moses, and in BluntschU. Use indexes. 

b. On the origin of and nature of the state consult Smith, chap. I ; 
Bluntschli, Book I, chap. VII, and Book II, chaps. VI-X ; Woolsey, 
I, pp. 189-198; Burgess, I, pp. 59-67. 

1. Make complete definitions of all important terms used in the 
chapter and apply each to different countries at the present time. 

2. Show how nations have tended to develop separate national 
governments during modern times. 

3. What is the difference between the English nation and the 
English State ? Is there an Irish nation ? An Irish State ? Did the 
nation or the State reach a comparatively completed stage first in 
France ? In Spain ? In England ? 

4. Mention instances where contract has been used in forming 
governments. Were the governments based solely on contract ? 

5. To what extent was the government formed by the Constitution 
of 1787 original ? To what extent did it copy previous State constitu- 
tions (consult Johnston, New Princeton Review, 1887) ? To what 
extent was it a copy of the British constitution (cf. §§ 136-138) ? 

6. In what way is democracy now different from democracy in 
ancient times (Bluntschli) ? 

7. What is the difference between a voter and a citizen ? 

Sovereignty and Constitutions (§§ 14-17) 

a. On the nature of sovereignty compare Crane and Moses, chap. Ill, 
Bluntschli, Book VII, and in Lalor, Book III, pp. 763-766 ; Smith in 
his introduction ; and Lowell, Essays on Government, pp. 189-222. 
On the development of the idea of sovereignty see Pollock (index). 

b. On constitutions consult Tiedeman, Unwritten Constitution of 
the United States, and Cooley, Comparative Merits of Written and 
Prescriptive Constitutions. 

1. Apply your definition of sovereignty to the British Parliament, 
the German emperor, the French nation, the state of Massachusetts. 
In what respects may each be said to be sovereign ? 

2. Can you find any instances of " dual sovereignty " in history ? 
Show why there is no dual sovereignty in the United States at the 
present time. 



Some Elemejtts of Politics 29 

3. what is the method of changing the constitution in France, in 
England, and in the United States ? What does the mode of amend- 
ment indicate as to the location of sovereignty (cf. Wilson, The State 
(index), Borgeaud, Adoption and Amendment of Constituiiotts) ? 

4. What is the connection between democracy and the written con- 
stitution ? 

Government (§§ 18-26) 

1. Qassify the important governments of the present under the 
different heads mentioned. Consult Burgess, II, pp. 1-16, 

2. What is the highest form of government ? Does history show 
that aristocracy is a higher form than monarchy ? Quote instances. 

3. What advantages would we derive from making the United 
States government more centralized (cf. chap. X) ? 

4. What is meant by administrative duties (see Goodnow) ? 

Sphere of State Activity (§§ 27-29) 

a. Consult Willoughby, Citizenship, chap. V ; Spencer's Social 
Statics, pp. 109-136, and Man v. The State; Leroy-Beaulieu, Modern 
State, pp. 155-215 ; Ritchie, Limits of State Interference. 

b. On theories, see McKechnie : Socialistic, 1 71-21 2 ; Individual- 
istic, 213-260; Organic, 264-269. 

1. Which ones of the ministrant functions are now used by the 
governments of the United States ? 

2. State the advantages and disadvantages of state ownership of 
railways (Hadley, Railroad Transportation). 

3. Select eight things that the government (State or national) is 
doing for society, and six that have been proposed. Of the six, how 
many do you favor ? Of the eight, how many were not undertaken 
fifty years ago ? 

4. State the chief objections to increasing the sphere of State 
activity (Willoughby, Citizenship). 

Law, Liberty, and Equality (§§ 30-34) 

1. What is law ? 

2. If political liberty does not necessarily produce other kinds of 
liberty, will government by democracy be permanent ? 

3. Why cannot liberty and equality live together ? 

Processes of Political Growth (§§ 35-39) 

I. What State forms the best example of continuous political evolu- 
tion ? What political revolutions have occurred during its history ? 
What social revolutions ? 



30 The American Federal State 

2. What revolutions have occurred in the United States ? "What is 
the difference between the American Revolution of 1776, the French 
Revolution of 1789, and the European Revolutions of 1848 ? 

3. Shovvf how different institutions have at one stage of history 
represented the best and most progressive ideas of the time, and have 
been productive of the greatest good ; while later they have sought to 
block the wheels of progress in order to maintain their powers. Con- 
sider, e.g. the feudal system, the church of the Middle Ages, the 
House of Lords, confederate forms of government, the absolute power 
of French kings, etc. 

4. Trace the powers of the English crown from 1066 to the present, 
showing how it has been modified by evolution and revolution. 



PART I 
HISTORICAL DEVELOPMENT 

CHAPTER II 

DEVELOPMENT ON ENGLISH SOIL 
Greneral References 

Freeman, Development of the English Constitution. Emphasizes the 
continuity of English development. 

Montague, Elements of English Constitutional History. A very good 
elementary account. 

Fielden, Short Constitutional History of England. Historical discussion 
of different topics. 

Boutmy, English Constitution. Suggestive. 

Macy, English Constitution. Descriptive and Historical. Especially 
good on modern period. 

Gneist, English Constitution. 2 volumes. 
/ Taylor, Origin and Grffiuth of the English Constitution. 2 volumes. 

Medley, English Constitutional History. Not a continuous history. 
Invaluable for reference. 

TasweU Langmead, English Constitutional History. 

Stubbs, Constitutional History of England. 3 volumes. Still the rec- 
ognized authority on the Middle Ages. 

40. Liberty and Government in Saxon England. — When Town mote, 

the Angles and Saxons overran Britain in the fifth and sixth hundred 

° ... mote, and 

centuries, they brought with them the Teutonic institutions shire mote 

that had been in use on the continent for many years. established. 

As soon as one of these roving bands settled down to an Montague, 

agricultural Ufe, all the warriors came together to parcel out -^*f • ^°"^^' 

a portion of the land and decide other matters of common tory, 7-14. 

interest. These town motes or assemblies in which each 

31 



32 



The American Federal State 



Wilson, The 
State, §§ 833- 
838. 

Taylor, En^. 
Constitution, 
I, 10-14. 

Howard, 
Local Consti- 
tutional Hist, 
in U. S., 18- 
23, 264-269, 
298-309, 



No national 
assembly of 
the people. 



Advantage of 
the insular 
position. 



A semi-na- 
tional feudal 
system. 



man had a voice became a permanent institution ; but when 
several towns (which were merely settled portions of territory) 
united to form what was called a hundred, it was found dif- 
ficult to get all the men together in a single assembly. The 
matter was finally settled by choosing a reeve or head man 
and four " discreet men " from each town to meet at inter- 
vals. This solution of the difficulty by the principle of rep- 
I'esentation of the smaller in the larger unit marks an essential 
difference between ancient and modern government. When 
hundreds united to make shires, the same method was 
adopted ; but when the shires were united into kingdoms, 
and finally in the consolidation of the heptarchy under 
Egbert (828), the idea of representation seems to have 
been largely lost sight of. It is true there was in theory an 
assembly of all the freemen of the realm, possessing the 
nominal right of electing and deposing the king ; but it was 
manifestly impossible for many to attend, and it soon became 
a very small body called, from the select character of its 
members, the Witan or Witagemote. But in the local divi- 
sions there continued, essentially unmodified, the two great 
principles of political Hberty and representation. 

41. The Essential Factors in English Constitutional 
Development. — With such auspicious beginnings, England 
might well seem destined to be the home of a self-govern- 
ing people. Yet this would not have been the case but for 
the existence of three conditions or forces which did not 
exist upon the continent. The first was its insular position. 
The isolation which this caused had been responsible for 
the slight hold that the Romans had obtained on Britain, 
and largely for the thoroughness with which the Teutonic 
invasion had been completed. On this account Teutonic 
institutions had been developed in all their purity, the old 
independent spirit had survived, and feudaUsm had made 
but slight progress before the time of the Conqueror. 

The second of these conditions was the peculiar system 
of feudalism introduced by William of Normandy. Every 
noble or freeman in the realm was obliged to swear allegiance 



Development on English Soil 33 

to the King as his suzerain, and to place his obligations to 
the monarch above those to his immediate overlord. This 
greatly strengthened the power of the Crown, and left the 
King master of the situation in England, while on the conti- 
nent kingly power remained undeveloped till long after the 
Crusades. However, this power of the King would have 
been an injury rather than a benefit but for the existence of 
the third factor peculiarly English, — the strong and indepen- The inde- 
dent character of the people. Upon the original Anglo-Saxon P^"*^^"* 
stock, with its love of liberty, its sturdiness but its uncon- the people, 
querable stolidity, had been engrafted new elements in the 
Dane and the Gallicized Norman. These elements, espe- 
cially the Norman, were not easily assimilated ; but the friction 
between the races was no less valuable than their later union 
in the development of the national character. 

It would be unjust not to mention the great service per- 
formed by the Church during both the Saxon and the Nor- 
man periods as the great unifying power of the realm. 
Without it there would have been no common bond between 
the kingdoms consolidated by Egbert, and, but for its guid- 
ing and directing influence, the Saxon and the Norman must 
have remained apart much longer than was the case. 

42. The Norman Rule: General Characteristics. — The Centrali- 
comingofthe Normans necessarily altered to some extent z^iion. 
the condition of affairs under the Saxons. The change Macy, Eng. 
would have been much more radical but for WilHam's desire Const., 117- 
to appear to be what he claimed, — the lawful successor of 
Edward the Confessor. The Witan was continued as the 
King's Council, although the real power was gradually trans- 
ferred to a committee of a few powerful nobles and church- 
men. The centralizing Norman influence made itself felt 
not only in the altered form taken by feudalism, but through 
the royal appointment of the chief officials of the shire and 
the gradual displacement of the shire mote, which was little 
more than a court, by the King's judges. In the local divi- Ecclesiasti- 
sions the political pov/er still remained with the freemen, ^Ir^rs" '"'^^ 
but the Church made itself felt by transforming the town into 



34 ^ li^f^ A III er lean luderal State 

a parish ; yet while the whole local system acquired a tinge 
of ccclesiasticism and so came more under the control of 
the King, it was not greatly altered. Many of the towns 
had purchased exemption from baronial rule and had been 
granted charters, which freed them from taxation upon pay- 
ment of a stipulated sum, and left the suffrage in the hands 
of the leading guilds of the ])lace. 
Absolutism 43. Contest between Crown and Nobility : Thirteenth 

ivi'i"'nr' Century. — Probably the most marked characteristic of the 
Cimrtaiinrl a Norman and Angevin jxiriods is the long contest between 
r.iriiainent. j^jj^ Crown and the nobility. This struggle had very great 
Maoy, lint:;, influence upon the constitutional and institutional devclop- 
1S8--179. nient of England, for out of it grew the Parliament and the 

recognition of many rights and privileges not existing on 
the continent. At the first the Crown was so powerful that 
it easily maintained its i)()sition without consulting the rest 
of the realm. Under John, the tyranny became so oppres- 
sive that nobles, clergy, and people made common cause 
against the growing power of the King. Their victory was 
so overwhelming that practically all their demands were 
granted in the Great Charter (1215), which guaranteed to 
each citizen the writ of habeas corpus, right of trial by his 
peers, and taxation only by consent of the council. Thus 
at one stroke the already threatening power of the King was 
checked, the nobles and commons were brought closer 
together, and liberty of the whole people seemed to be 
assured. But the twenty-five nobles who were to see that 
the charter was observed found the task too difficult for 
them, and the attempted restraint of the Crown was con- 
tinued by warfare rather than by constitutional means. In 
More lihcriy \\^^ contest, cach sidc was anxious to get the help of the 
reward lor i^'oplf, aiul consequently offered rewards for their support. 
tlic help of 'Phis explains why in 1265 Simon de Montfort attcmiitcd to 
^ P<-"1"- strengthen his position by including in the national assembly 
which he called two knights from cach shire and two bur- 
gesses from each town favorable to him. Not to be out- 
witted by the nobles, the Crown adopted the same methods. 



Development on English Soil 35 

so that after 1295, when a Parliament was called, it was cus- 
tomary to summon the four estates of nobles, clergy, knights, 
and burgesses. 

44. Fourteenth to Sixteenth Centuries. — During the first A Parliament 

half of the fourteenth century a change occurred in Parlia- ''^^"••^o 

^ ° ^ ^ nouses, 

ment which gave it much greater strength. Two of the four 

estates — the nobles and clergy — united to form one house : Medley. /;>?^. 

, -, , , , , . • . , ComfllliM., 

while the other two always acted together m what was later 293-301, 
called the House of Commons. As the Commons repre- 
sented the people, both the Crown and the Lords were 

anxious to secure their aid in the contest with each other. '^^''- ^'^^• 

, .,.,-, mens gains 

In consequence it soon became a recognized right of the ,he pg^t to 

Commons to vote supplies. Judicious use of this power vote supplies, 
brought them others, for they refused to vote taxes for the 
King till abuses were removed or privileges granted. But 
just when it seemed as though the King's powers would 
finally be restricted by the constitution, three causes led to 
increased despotism. The nobility, which had bom the The Tudor 
brunt of the battle in the contest with the King, was almost preme. 
destroyed by the War of the Roses ; the restriction of the 
suffrage to comparatively large property holders tended to 
weaken the Commons at the same time ; and the large class 
of yeomen, who had been the bulwark of Britain in the 
long war with France, had begun to degenerate into a class 
but little better than jjeasants, and had weakened the whole 
nation. But while the Tudors taught Parliament the lesson 
of servile obedience to the King, they increased its nominal 
power, and those very monarchs, by their independent re- 
ligious attitude, set an example of political independence 
which the great Puritanic element of the nation was not 
slow to follow. The Renaissance had grown into the Refor- 
mation, and in England the Reformation meant liberty. 

45. England at the Close of the Tudor Period : Central Prodomi- 

Govemment. — The Central Government in 1600 consisted "f"c«'>^<he 

Crown, 
of the Crown, the Privy Council, the Parliament, and the 

Judiciary. There was no such separation into three depart- (;^^/ 

ments as we have now in this country. The Crown was, to 247-260. 



36 



The American Federal State 



Medley, Eng. 
Consfl Hist., 
78-79. 301- 



Important 
influence of 
the local 
gov't upon 
America. 

Local gov't 
as a whole. 

Goodnow, 
Comp. Cottst'l 
Law, I, 
162-164. 

Channing, 
Town and 
County Gov't 
in the Colo- 
nies, in 
y.H. U.S., 
n, 439-453- 



A centralized 
county gov't. 

Fiske, Civil 
Gov't of 
K 5., 50-53. 



all practical purposes, the government, but in the matter of 
legislation the Crown and the Parliament acted together; 
that is, there were the three houses of King, Lords, and 
Commons, any one of which had an absolute veto over the 
othei's. Even in legislation the King was the most powerful 
house, as he possessed the real initiative in all important 
matters. The Lords and the Commons each had powers of 
their own, the latter dealing chiefly with finance. But the 
Crown could further increase its influence in legislation by 
proroguing Parliament, and even by altering its composition. 
It could create peers at will, and might change not only the 
boroughs that sent representatives, but the franchise in 
those boroughs. Still another power akin to legislation was 
in the possession of the King. He could issue through the 
Privy Council proclamations which had the force of law. 
As the Council was chosen by him and directly responsi- 
ble to him, this power was almost without limitations. As 
executive, he was little restricted. He was commander-in- 
chief, had absolute control of all foreign affairs, and possessed 
great power in appointment. He selected all judges, to hold 
office during good behavior, which meant the pleasure of 
the monarch, and so it came about that the judiciary were 
but tools of the King, who was the "fountain of justice." 

46. Local Government in 1603. — In many ways these 
central institutions were destined to exert a less direct 
influence upon America than the local institutions of Eng- 
land. It was a long time after the first settlements were 
made before a real central government was established in 
America ; while even the governments of the colonies were 
developed so slowly that the influence of the Parliament and 
the Crown was either purely general or made itself felt 
through their relation to the colonies and consequent influ- 
ence on the development of American nationality (§§ 83-88). 

The local governments were of three kinds, those of the 
counties, the parishes, and the boroughs. The county gov- 
ernment was quite centralized, as all the important officials 
were appointed by the Crown. The chief officials were the 



Development on English Soil 37 

justices of the peace, who held court in place of the old Medley, £»^. 
shire court, and looked after the administration of justice, 392-400. 
the highways, etc. They were assisted by the sheriff and the 
lord heutenant. In the parishes the vestry looked after '^^^ Parish, 
most secular and ecclesiastical matters. The vestry usually Fiske, ibid., 
numbered twelve, and they were either chosen by the rate- 36-39. 
payers of the parish or elected by the former vestry in case Medley, ?^tar., 
of a vacancy, that is, they formed a close corporation. In 400-404. 
most of the parishes the ratepayers chose other persons, 
such as the constable and the church-wardens, who were 
overseers of the poor. When money was to be raised, the 
amount and the manner of raising it was often decided by 
the ratepayers. It can thus be seen that all over England 
the people of the rural districts were accustomed to a system 
of local government in which they took no small part. The 
boroughs were governed in one of three ways, — the officials Borough 
being elected by just a few persons who occupied political 
positions, by a large number connected with the guilds, or 
by the taxpayers at large. The government was not of so 
popular a character as in the country, but even in the towns 
there was considerable opportunity to gain political experi- 
ence. It is not easy to realize that so great a degree of 
self-government existed under the Tudors, but it can be 
easily seen how great an advantage was derived by the more 
progressive classes from this pohtical experience. 

47. The Rights of Englishmen (1600). — Just as the local Civil rights 
governments of England furnished the models for the colo- insecure, 
nists, so the civil, political, and religious liberty enjoyed or 
denied in the England of the seventeenth century was the 
basis of the new society which sprang out of the old under 
conditions much more favorable to the development of Cf. Medley, 
rights. From the times oi Magna Charta every freeman had ^^^" ^°"^*'^ 
been nominally entitled to a speedy trial before a jury of his 434-460. 
peers, without risk of being subjected to heavy bail, severe ^, . 
fines, or excessive imprisonment. These provisions were, Eng. Const. 
however, very httle observed. The writ of habeas corpus *" ^^^^"^ °f 

1- J 1 J J • , • • 1 • •„ , Charles II, 

had been suspended with unpunity, and it was not till the 107-259. 



38 



The American Federal State 



Political 

liberty 

uncommon. 



Disabilities 
of non- 
churchmen. 



Economic 
freedom 
almost 
unknown. 



law of 1679 was passed that the writ was faithfully observed. 
It is difficult for us to imagine a condition of society that 
called itself civilized, where hunnian life was held so cheap 
that the number of crimes punishable by death was over one 
hundred, where the stealing of a sixpence's worth of property 
was a capital offence, and where there was no guarantee 
that a person accused of a crime would have a chance to 
prove his innocence. 

Political liberty was by no means common. In the 
chartered boroughs, only the members of the favored guild 
— in many cases only the most favored members — had a 
right to vote for either the town officers or the representa- 
tives in Parliament. In the counties, none but freeholders 
who owned property worth forty shillings a year voted for 
members of the House of Commons, though the parish 
officers were nominally at least elected by the parishioners 
in most parts of the country. The offices were class 
privileges. 

Religious liberty was almost unknown in every part of 
Europe, Church and State being everywhere united, and the 
man outside the authorized Church seemed hardly entitled 
to the protection of the State. Actual persecutions were 
not so common in England as on the continent, but Separa- 
tists, Quakers, and Catholics each came in for a share. By 
the law of 1562, Catholics were excluded from the House 
of Commons till the Catholics' emancipation bill was passed 
in 1829. In voting for public officials, all dissenters were 
necessarily excluded. 

While the period of monopolies and commercial restric- 
tion belonged rather to the later history of the seventeenth 
century and to the eighteenth, this was an age of anything 
but economic freedom. Custom as well as law prevented 
even freemen from taking advantage of opportunities which 
required a change of occupation or residence. A practical 
serfdom existed in many parts of the country, and agricul- 
ture was of course the only important occupation. Later in 
the century, unwise restrictive commercial, tariff, and navi- 



Development on English Soil 39 

gation laws became even more common, and stunted many 
growing industries. In every way a selfish policy was in the 
end ruinous to all concerned. 

Unfortunately there was not as great a change in the Real liberty 
rights of the people as in the powers of Parliament during ^^^^J^op^d 
the seventeenth century ; but the growing enlightenment of 
the nation and the growth of liberal ideas caused a gradual 
emancipation from the harsher and cruder forms of servi- 
tude. Through it all, in fact, throughout English history, 
the people show a spirit of sturdy independence, combined 
with a love of order and a respect for law, growing probably 
out of the system of well-preserved local self-government, of 
which all persons of the English-speaking race may well 
be proud. 

48. The Revolutions of the Seventeenth Century. — Limited Arbitrary ac- 

as were the powers of the Parliament in 1600, the Stuarts ^lonofthe 
^ ' Stuarts in- 

attempted to rule entirely without its aid. Although the creases 

members of Parliament were much more independent in power of 
character than those under the Tudors, it is questionable 
whether they could have increased the powers of either Borgeaud, 
house but for the foolish stubbornness of the kings. They netseq. 
had only to assert the rights which had always been recog- 
nized as theirs, and which were now being violated, in ^^^ Const., 
order to win the cordial support of the nation. But they 91-99- 
no sooner obtained promises of reform than these promises Medley, 
were broken. This falseness further weakened the position Eng. Const'i 
of the Stuarts. But it was not in their political relations ^ ' ^°^ 
toward Parliament, but because of their religious absolutism, 
that the great rebellion broke out. Strangely enough, the 
results of the civil war were more favorable to parliamentary 
independence than to religious freedom. 

After 1660 the individual subject was no more free Revolution of 
from arbitrary restrictions than before. It required another ^ ' 
struggle to have his rights not only recognized, but respected. Montague, 
The Revolution of 1688, with the political changes of the T^i-x^.^ ' 
subsequent decade, is significant from two points of view. 
First, it marks the beginning of real individual liberty by 



40 



The American Federal State 



Nature of the 
Cabinet sys- 
tem. 



Medley, 
Eng. Const'l 
Hist., iio- 
III. 



Evolution of 
the Cabinet. 

Wilson, The 
State, $§ 854- 
859- 

Medley, ibid., 
104-112. 

Montague, 
Eng. Co fist., 
163-173. 



assuring freedom of the press, religious toleration, and re- 
peat for the new habeas corpus act by making the tenure of 
the judges for good behavior. Second, it placed Parliament 
in a stronger position ; for while the Crown was not deprived 
of m.iny important powers, the dependence of the Crown 
upon Pariiament in certain particulars injured the former. 

49. Cabinet System and its Development.' — It was this 
peculiar relation of the Crown and Parliament which, under 
the favorable conditions during the Hanoverian period, led 
to the development of the Cabinet system. This system may 
be described as one in which the powers of the Crown are 
exercised by a Cabinet responsible not to the monarch, but 
to the Parliament. The members of the Cabinet are leaders 
of the ParUament ; they are in one sense the servants of the 
Parliament, in another its masters. They are the servants 
now of the Commons, because, if the lower house votes in 
opposition to them, they must either resign in a body or 
have a new election of the Commons on the point at issue. 
They are its masters because they still have the Crown's pre- 
rogative of introducing bills, i.e. they have the initiative in 
all important legislation. It was not till the middle of this 
century that the Cabinet system was fully developed. 

The Cabinet was originally composed of those members 
of the Privy Council who especially enjoyed the confidence 
of the King. As late as the time of WilUam III they were 
really appointed by the monarch and responsible to him, 
but were then, as now, a body not recognized by law. 
Under George I and II the inabiUty of the kings to speak 
English, and their ignorance of English politics, led them to 
leave the business of government to the prime minister, who 
kept his place if he could control Parliament. In this way 
the interdependence of the Cabinet and Parliament was 
brought about. George III tried to check this movement 
by seeking to exercise the powers of the Crown more 
directly, but the attempt ended in failure. As the Cabinet 

1 This section and the next are given for the sake of comparison with 
later development in America. 



Development on English Soil 41 

could not be responsible to two houses, who might disagree, 
the power to control the Cabinet was left to the Commons, 
who were, in their turn, before 1832, controlled by the 
Lords. Since that time the people, through their represen- 
tatives, have exercised all the powers of government. 

50. The Constitution made Democratic. — Before 1832 it The three re- 
was the custom to choose representatives from the counties ^°J^ .^'"^ °^ 

'• the nine- 

and from boroughs that had been selected centuries before, teenth cen- 
It was one of the Crown's powers to alter the list of places ^^^y* 
sending members — one which the King had lost, but which Montague, 
the Parliament hesitated to assume. In these boroughs the ^^^-.203-212. 
suffrage varied widely, but in almost every case was very Compare ref- 
restricted. In the counties few voted, because few were gQ^^of chap 
owners of any land at all. In the Reform Act of 1832 the XXII. 
popular demands for a share in the government were granted. 
Suffrage was very far from universal, but the number of 
voters was more than doubled ; while most of the rotten 
boroughs were struck from the list, and the towns that had 
grown up as a result of the new industrial movement were 
put on. This act was bitterly opposed by the Lords, w^ho, 
by their very opposition, signed their death warrant. The 
parHaments called under it furthered the cause of reform 
and popular liberty, and through various measures, particu- 
larly the acts of 1868 and 1884, have made the government 
much more popular. It must not be supposed, however, 
that the aristocracy are without power. The political leaders 
have usually been drawn from their ranks, and form a class 
such as does not exist in this country. 



QUESTIONS AND REFERENCES 
England before 1603 (§§ 40-44) 

a. As to whether English liberty was due to the Anglo-Saxons or 
the Puritans, compare Freeman, and Borgeaud's Democracy in Eng' 
land and New England, Part I. 

I. Compare the influence of the feudal system upon the King's 
power in France, Germany, and England. 



42 The American Federal State 

2. Show in what ways the contest between the King and the 
Church affected the history of England. 

3. Give the causes which led to the growth of free cities. Show 
how they became free, and trace their influence upon modern freedom. 

4. Did Magna Charta recognize the principle of " no taxation with- 
out representation"? 

5. Did Parliament have the legal right to elect and depose kings 
before the Tudor period ? Prove. 

6. Give reasons for the disfranchisement of the poorer classes. Was 
it a benefit in any way before 150x3? Why was it injurious after 1500? 

7. State clearly why Parliament became subservient to the Tudors. 

England in 1603 (§§ 45-47) 

1. How was Parliament chosen in 1600? Give a brief history of 
the judiciary under the Tudors. 

2. Why had local self-government been preserved when the national 
government was absolute? 

3. Compare the different kinds of liberty in England (1600) with 
those existing, in Anglo-Saxon times, in Massachusetts and Virginia 
(1650); in the United States to-day. 

England since 1603 (§§ 48-50) 

1. Were the Stuarts more absolute than the Tudors? If so, in what 
ways? 

2. Account for the difference between the action of the Parliament 
from 1530 to 1546 and from 1630 to 1640. 

3. What part did Puritanism play in the events of the seventeenth 
century? 

4. Give in detail the changes in government and liberty that fol- 
lowed the Revolution of 1688. 

5. Has the Parliamentary system succeeded in preserving both the 
prerogative of the Crown and the rights of Parliament ? Explain. 

6. Did George III hasten or retard the development of govern- 
ment by the people ? 

7. In what ways was the Reform Act of 1832 a revolutionary 
measure ? 

Government of England To-day 

a. On the central government, consult Macy, 9-1 16; Wilson, 
§§ 860-936; Traill, Central Government; Bagehot, English Consti- 
tution; Burgess, Constitutional Law^ I, 91-97, 138-141; II, 59-76, 
185-215, 338-346; Goodnow, Comparative Administrative Laiv (table 
of contents) ; Courtney, Working Const, of United Kingdom, 1-228. 

b. On local government, see Wilson, §§ 938-1010; Chambers, 
Local Government ; Maltbie, English Local Government of To-day. 



CHAPTER III 

THE COLONIAL PERIOD (i 600-1 763) 
General References 

Thwaites, The Colotiies. The best single volume. 

Hart, Formatioji of the Union, 1-41. 

Channing, Studenfs History of the United States. An excellent sum- 
mary of our history from 1492 to 1898. 

Channing, The United States of Atnerica (i 765-1865), 1-40. 

Mace, Method in History. A suggestive interpretation of our history 
to 1865; to 1763, pp. 82-104. 

Sloane, i^r^wcA War and Revolutio7i, 1-116. 

Lodge, A Short History of the English Colonies in America. Excel- 
lent studies on social life. 

Channing, Town and County Government in the English Colonies. 
(/. H. U. S., II.) 

Frothingham, J?ise of the Republic, chaps. I-IV. Especially good on 
the development of Union. 

Story, Commentaries on the Constitution, §§ I-197. The best con- 
stitutional summary. 

Lamed, History for Ready Reference. Under U. S. and names of states. 

Lecky, England in the XVIH Century, II, 1-21; III, 321-331, 
341-346. 

Fiske, Beginnings of New England; Old Virginia, 2 volumes, and 
The Dutch and Quaker Colonies of America, 2 volumes. 

Taylor, Growth of the English Constitution. Introduction. Traces 
continuous development from England. 

Howard, Local Constitutional History of t/ie United States. The 
authority on the subject. 

Macdonald, Documents Illustrative of American History (1606-1775). 

Winsor, Narrative and Critical History of America, III-V. 

Bancroft, History of the United States (last revision). Vols. I, II. 

Hildreth, History of the United States, I, II. American Commonwealth 
Series. Connecticut particularly valuable. 

For further bibliography, consult Thwaites and Hart (see above), 
Winsor, Narrative and Critical History, III-V; Mace, Man- 
ual ; Channing and Hart, Guide. 
43 



44 



The American Federal State 



Settlements 
under land 
grants. 



Colonial be- 
ginnings. 



Thwaites, 
The Colonies, 
SS- 

Character of 
the colonists. 

Hart, Forma- 
tion of the 
Union, \ 4. 

Channing, 
Local Gov't 
in Eng, Colo- 
nies, 

J. H. U. S., 
II, 437 etseq. 

Influence of 
soil and cli- 
mate. 

Hinsdale, 
\h 70, 74- 



51. Method of making Settlements in America. — All of 

the early settlements of the English in America were small, 
and most of them were made in the same way. When for 
any reason a party of men wished to emigrate to the new 
world or to send out others in search of wealth, they sought 
a grant of land upon which to make their future homes. 
In some cases they were not only given a strip of land, 
but were incorporated into a company with a charter from 
the King. This charter stated the Hmits of their territory 
and told how the company should govern itself. In time 
the Atlantic coast and the banks of the larger rivers became 
covered with tiny settlements, often unconnected with each 
other, but usually made under the direction of the com- 
panies or of individuals called proprietors, who controlled 
that particular territory. It would scarcely be correct to 
say that these scattered settlements united to form colonies, 
for as a rule the "colony " existed quite as early as any of 
its settlements ; but it is possible to assert that the " colony " 
had no real existence till these settlements became so 
numerous that they were consolidated and a common colo- 
nial government became necessary. 

52. Influences affecting Colonies. — The character of the 
local government and of the central government developed 
in each colony was largely influenced by the particular con- 
ditions to which it was subject. Perhaps the most impor- 
tant of these conditions was the character of the colonists 
themselves ; for that determined, among other things, what 
kind of ideas and institutions were brought to the colony. 
Hardly less significant was the influence of soil and climate, 
which played such an important part in making the town 
the natural local unit of New England and the plantation 
that of the South, and which left such an important impres- 
sion on the life of each section. Where people of other 
nationalities were found, they almost always left some trace, 
while the peculiar form of the church institutions, the 
introduction of different social classes, and finally the char- 
acter of the earliest charter in each colony, with those 



The Colonial Period 



45 



apparent accidents which helped to give it its pecuUar 
development, were among the causes of many differences 
between the colonies. 

53. Lines of Political Development. — It is customary to 
separate the colonies into three distinct classes, because of 
differences in the character of the local governments estab- 
lished : (i) the town system developed in New England; 
(2) the county system in Virginia and the South ; and (3) 
the compromise or mixed system in the Middle colonies. 
The reasons why these kinds of governments were estab- 
lished in the different localities depend upon the influence 
which each one of the causes just mentioned exerted over 
that locality. How those causes happened to develop these 
t}'pes of local government, we shall see shortly. It is sufifi- 
cient here to add that town, county, and mixed systems 
exerted a vast influence historically over belts directly west 
of the colonies in which each type was developed. 

54. The Charter of 1606. — It -was the most natural thing in the 
world that, when the merchants of London and PhTnouth wanted to 
make settlements in America for purposes of trade, they should have 
applied for a charter. During the Middle Ages there had grown up 
all over Europe the custom of granting to corporate guilds town char- 
ters, with extended privileges. Out of these had come land charters, 
which not only stated the bounds of the land grant, but defined the 
rights of the company with regard to liberty and government. Only 
six years before, in 1599, Elizabeth had given the famous East India 
Company a liberal charter, with almost complete power of self-gov- 
ernment. 

The charter grant to the Plymouth and London companies in 1606, 
while less liberal than that of the East India Company, gave very ex- 
tensive territories. The Plymouth Company could settle anywhere 
between the 41 and 45 parallel, and the London Company between 34° 
and 38°. The government for each company was vested in an English 
council of thirteen persons, appointed by the King. Under this council 
were two others of thirteen each, appointed in the same way for the 
colonies. None of these councils were law-making bodies, as they 
merely carried out the instructions of the King. They were, however, 
given the right to defend the colonies and to coin money. The rights 
of the colonists were guaranteed by the stipulation that they should 
have "all the liberties, franchises, and immunities of free denizens 



Different 
types of local 
government. 

Taylor, Eng. 
Constitution, 
I, 27-30. 

Fiske, Civil 

Gov't in 

U. S., 81-95. 



Previous his- 
tory of char- 
ters. 

Fisher, Evo- 
lution of the 
Const., 28, 29. 



Provisions. 
Brown, Gene- 
sis of the 
Const., I, 32- 
63. 

Macdonald, 
Documents, 



46 



The American Federal State 



Conditions 
were anti- 
democratic. 

Mace, Meth- 
od in History, 
93-103. 

Crane and 
Moses, Poli- 
tics, 91-100, 
I18-125. 



Two repre- 
sentatives 
from each 
town, hun- 
dred, or 
plantation. 

Channing, 
§43- 



and natural subjects within any of our dominions, to all intents and 
purposes as if they had been abiding and born within this our realm of 
England, or in any other of our dominion§." 

55. General Character of Political and Social Conditions in 
the South. — In one sense most of the English settlements 
were made under the charter of 1606, but it was upon Vir- 
ginia that the charter exercised the greatest influence. The 
subsequent charters of that colony were direct successors 
of that instrument, but more democratic in spirit, as the 
powers of government were soon transferred to the whole 
body of stockholders. Under these charters many settlers 
migrated to America. Their character might readily be 
imagined from the motives that prompted them, as practi- 
cally all were in search of adventure or wealth. Class dis- 
tinctions were made almost from the start, and became 
much more prominent as the colony grew. The great 
tobacco plantations fostered a landed aristocracy at the 
same time that they made slave labor necessary, and the 
importation of indented servants profitable. Such social 
differences counteracted all influences toward equality of 
any kind. General education would have been out of place 
in such a system. All ecclesiastical, economic, and political 
advantages gradually became the possession of the highest 
class, who looked upon themselves as the natural leaders. 
It is not strange that, under such circumstances, the whole 
life of the people should have been productive of inequali- 
ties, which were clearly expressed in absence of local self- 
government, restriction of the suffrage, and concentration 
of power in the hands of a few. 

56. The First Virginia Assembly (1619). — These restric- 
tive tendencies were not especially noticeable at the very 
beginning. The first fifteen years of Virginia history showed 
great constitutional progress of all classes then in the 
colony. The settlers had shown themselves so opposed to 
the arbitrary rule of the governors sent over that the major- 
ity of the English company, who belonged to the liberal 
party, decided to try an experiment in self-government. To 



The Colonial Period 



47 



that end they, in 1619, directed the governor, Yeardley, 
to call two representatives from each town, hundred, or 
plantation to assist him and his council in making the laws. 
In this way was a spirit of independence in America com- 
bined with the hberalism of an English company in the 
development of the first popular assembly in America. 

57. The People and the Government in the South. — By 
the Royal Instructions of 1621 this system of colonial 
government was indorsed and continued; and when, in 
1624, the Virginia Company was dissolved and the charter 
recalled, the King took the place of the company in appoint- 
ing the governor, the council, and the other officials, 
although the people were still allowed to choose representa- 
tives to sit with the council. This model was imitated by 
the other colonies in the South. The early attempt to 
allow all the freemen of Maryland to have a part in making 
the laws soon gave place to such an assembly, sitting not 
as a separate body, but with the governor's council. Caro- 
lina did not even attempt to use the cumbersome constitu- 
tion of Locke, but early adopted the Virginia system, which 
seemed so well suited to the conditions. Yet even the 
rough life of the frontier did not produce perfect equality. 
The existence of well-defined classes, graded from slaves up 
through indented servants to the landed classes, affected 
politics as well as society, and kept the suffrage from the 
hands of all the freemen. 

58. Local Government in Virginia. — In local government 
the people took even less part. The soil was so well 
adapted to agriculture that plantations naturally sprang up 
everywhere, and towns did not flourish. As a country set- 
tled with plantations has a very scattered population, it 
possesses few needs that require the attention of the whole 
people for even a large district. In consequence of these 
conditions the county was much more important than the 
parish. This left to the vestry of the parish few important 
duties, and in time the vestry came to reelect its own suc- 
cessors according to the custom of many parishes and more 



Fiske, Old 
Va. I, 185- 
188. 



Assembly of 

landowners 

continued. 



Local 

government 
com- 
paratively 
unimportant, 

Hinsdale, 
§^74-79. 

Channing, 
Local Gov't, 
y. H. U. S., 
II, 474-489. 

Closed 
vestries. 



48 



The American Federal State 



Fiske, Civil 
Gov't, 59-61. 



Centralized 

county 

government. 

Taylor, Eng. 
Constitution, 
1, 38-39. 

Howard, 
Local Const' I 
Hist., 393- 
397- 



Democratic 
ideas and 
practices of 
the Puritans. 

Mace, 
Method in 
History, 
86-93. 

Borgeaud, 
Democracy. 

Crane and 
Moses, 
Politics, 
101-117. 



municipal councils in England. Such "closed vestries" 
were, of course, fatal to the pohtical development of the 
people, who became so indifferent to questions of govern- 
ment as not to use opportunities that were offered to 
improve their condition. 

The county government was even less favorable to po- 
litical equality. The county officers, the lieutenant, the 
sheriff, and the justices of the peace, who had administra- 
tive as well as judicial duties, held office through appoint- 
ment by the governor. The people were debarred from 
any share whatever in the direct conduct of affairs. Yet 
the aristocracy who controlled the parishes and the assembly 
did make themselves felt in the government of the county, 
because by custom the governor chose the county officers 
from their number. 

59. General Character of Political and Social Conditions in 
New England. — New England was settled almost exclusively 
by English Puritans, most of whom came to this country in 
order to get rid of the arbitrary church government imposed 
upon them by the ministers of Charles I. They beheved in 
simplicity in church rule, in election of pastors by the con- 
gregations, and that the conduct of the individual should 
be controlled by the standards of Scripture. They had not 
separated from the English Church, but had attempted to 
reform it by persuading the Church to adopt their methods. 
When that failed, a great many congregations migrated as 
one body to America. On account of similar interests, fear 
of the Indians, and the lack of large fertile valleys suitable 
for plantations, they settled together and usually established 
what was known as the " Independent " form of church 
government, i.e. the whole congregation chose the pastor, 
looked after the finances and other matters. It was very 
natural that the congregation should look after what few 
secular matters needed attention, so we find the congrega- 
tion formed what was really a town meeting, in which only 
church members could vote. In this way the religious 
organization of the Puritans made possible and necessary 



The Colonial Period 49 

what was the most democratic form of local government 
then in existence, but it also made religions qualifications for 
voters almost as necessary. 

The Puritan spirit produced some interesting results, Liberality 
because it was democratic in one sense and exclusive in ^"'^ exclu- 

. siveness of 

another. The dependence upon Scripture led them to the Puritans, 
establish schools in order that they might study to better 
advantage. Their attempts to govern themselves in their 
own way led them to restrict the privileges of the non-Puri- 
tans of the colony, and those whose privileges were thus 
restricted with true Puritan spirit protested with such suc- 
cess that the new government was even more democratic 
than the old. Thus the spirit of the Puritans leavened the 
whole community. It never overcame religious exclusive- 
ness nor produced social equality, but it effectually counter- 
acted every tendency toward centralization in government, 
made education at public expense the policy of the colonies, 
and gave to all practically the same ci\nl rights. 

60. Early Constitutional Development in Massachusetts. — Charter of 
The charter which the King gave Massachusetts Bay Com- ^^^9- 
pany (1629) was a very liberal document. It placed the Channing, 
entire control of the government in the hands of the stock- ^ 59- 
holders, and permitted them to elect the governor, deputy- 
governor, and the eighteen assistants, and to control the 
admission of new members. It was this instrument which 
Winthrop and his companions boldly carried to America the 
year after settlements were begun. As there were already 
scattered church congregations in which each member was 
allowed a voice in the conduct of all affairs, ecclesiastical or 
secular, these church members now took the places of the 
former stockholders, i.e. they were given the same right to Early civil 
vote. So the charter of a corporation became the charter '^'sputes. 
of a society in which Church and State were closely united, Montgomery, 
but to which the Church brought the life-giving principle of student's 
popular government. As the colony grew and the govern- A^^^g" '' 
ment became more complicated, tendencies less favorable to 
growth appeared. The non-church members began to out- 



50 



The American Federal State 



Victories of 
the Liberals. 

Mace, 
Manual of 
Amer. Hist., 
129-131 
(text). 



A more 

democratic 

government 

involving 

new political 

principles. 

Thwaites, 
Colonies, ^ 58. 

Johnston, 

Connecticut, 

63-78. 

Borgeaud, 
De?nocracy, 
1 17-142. 



number the communicants so that the suffrage really became 
quite restricted. At the same time the general court, as the 
body of assistants was called, began to legislate with regard 
to matters purely local, recklessly invading the sphere of the 
town meetings. This centralizing tendency met with uni- 
versal opposition, leading to two results. First, all purely 
local matters were left to the towns, and second, repre- 
sentatives of the towns began to sit with the assistants, in 
order to help them in making the laws and to guard the 
interests of the towns. 

But the Uberalism due to the opposition of the Puritan 
spirit to Puritan exclusiveness did not stop there. In 1662, 
by what was known as the " halfway covenant," many per- 
sons not church members were given the privilege of voting. 
Before that, the lack of a written code had made it possible 
for the magistrates to apply the laws loosely, and had caused 
many complaints. In 1641 the "Body of Liberties" reme- 
died this state of affairs by guaranteeing to all the right of 
trial by jury, and of petition and equal protection before the 
law. Suffrage for members of the town meetings was altered 
so that many who could not vote for representatives might 
vote for selectmen. 

61. The Connecticut Constitution (1639). —The colonies 
that were planted south of Massachusetts showed much the 
same characteristics. The self-governing town was everywhere 
the great stronghold of liberty and the basis of government. 
It was nowhere better developed than in Connecticut. The 
people of Connecticut had emigrated from Massachusetts 
largely because they opposed the narrowness shown in the 
strict religious test for voters, though they later outgrew 
their scruples and appUed a test similar to that of Massa- 
chusetts. As they had no charter, they arranged for them- 
selves a system of government like that in Massachusetts. 
The influence of the charter as a constitution is clearly 
shown by the embodiment of these fundamental laws in a 
written document; but the fact that these "Fundamental 
Orders" were created by the people themselves and not given 



The Colonial Period 51 

by an outside person marks a distinct step in advance in 
constitutional development. No mention is made of assem- 
blies of all the freemen of the settlement, but deputies from 
the towns were to meet with the governor, deputy-governor, 
and magistrates (assistants), while the governor was elected 
by the general court. 

A system of government was recognized and guaranteed for both Events 
Connecticut and Rhode Island by their liberal charters of 1662 and between 1650 
1663. In the latter colony the spirit of freedom went farther than in ^ '^7°°- 
the others, by preserving the right of suffrage for freemen after it had Channing, 
disappeared elsewhere. About the time these charters were granted, §} 81-84, 9^- 
that of Massachusetts was confirmed, on condition that certain things 99- 
were done for the Crown and for members of the Church of England. 
The failure of Massachusetts to carry out its part led to the revoca- 
tion of its charter in 1684, and was followed by the unsuccessful 
attempt to revoke the charters of Connecticut and Rhode Island. 
Under William III, Massachusetts obtained a new charter, which 
made property and not religion the basis of the suffrage, and left the 
appointment of the governor in the hands of the King. 

62. The Town Meeting. — The influence of the New Character, 
England town meeting upon American constitutional Hb- methods, and 

i ji 1 ■ 1 r-1-.i • influence. 

erty can hardly be overestimated. The meetmgs were 
held at least once a year, usually in the spring, and all ^'^,^' ^^^^ 
"freemen" were accustomed to come together to discuss 
and decide matters pertaining to local or central govern- ii°d%>2-^A. 
ment, to vote for the assistants, in some cases for the gov- 
ernor and his deputy, and to choose representatives to the y. //, u ^. 
assembly as well as their own town officers. As every town H- 459-474' 
had at least one deputy in the assembly, interest in the 
aifairs of the colony was always maintained. In the local 
government, the people chose selectmen to decide unim- 
portant matters that came up between the sessions of the 
loym meeting; but the records were often subjected to a 
very searching criticism, so that supendsion was constant 
and careful. Other officers, such as the constable, over- 
seers of the highway, overseers of the poor, and town 
clerk were chosen at the spring meetings each year, and 



52 



The American Federal State 



Popular 
assembly ; 
supervisor 
system for 
localities. 

Mace, 
Method in 
History, 103- 
104. 

Goodnovv, 
Administra- 
tive Law, I, 
178-185. 

Howard, 
ibid., 362- 
364- 



Commis- 
sioner sys- 
tem in the 
counties, 

Howard, 
ibid., 373- 
387. 



were constantly under surveillance. This was possible 
because almost all of the towns were small and compact, 
and because interference in local affairs by the assembly had 
not been allowed. In the selection of town officers, suffrage 
was at first practically the same as for choosing representatives 
of the colonial government, but in time many non-freemen 
who were property owners were admitted. At the close of 
the seventeenth century any landowner with property worth 
forty shillings a year was allowed to vote. 

63. New York. — In the colonies conquered from the 
Dutch the unit of local government had generally been 
the manor, but it was rarely or never self-governing. The 
central government was autocratic, and but Httle influenced 
even by the nine advisors chosen by a few of the people. 
The Enghsh occupation introduced the general principles 
of English liberty, and in the course of twenty years led to 
the establishment of an assembly chosen by the freeholders 
to sit with the councillors and make the laws. No taxes 
were to be levied without the consent of this assembly. 
The manors were gradually supplanted by the township 
system, which as a late growth possessed much less vitality 
and power than in New England. The chief peculiarity of 
the system was the method of having the towns in each 
county choose supervisors as an administrative assembly for 
that county. 

64. Pennsylvania. — The system of local government 
that was most common in Pennsylvania was, like that of 
New York, a compromise between the county and the town- 
ship t)'pe, but it was more influenced by the county, as the 
colony was so much nearer Virginia. Instead of having 
supervisors from the townships as in New York, the county 
was governed by commissioners elected from three or five 
districts. There was little or no township government at 
the first, and the county officials were given extended 
powers. 

While the political institutions of the Quakers are not espe- 
cially noteworthy, their political and social ideas belonged 



The Colonial Period 53 

to the nineteenth rather than the seventeenth century. The Advanced 
principle of equality was at the basis of these ideas, and ouSe 
led in many cases to extremely liberal and humanitarian 
views. The treatment of people belonging to other sects 
was not marked by the harshness observable elsewhere, the 
sufirage was subject to fewer restrictions than in other colo- 
nies, and an attempt was made, though without success, to 
abolish the death penalty except for murder. 

65. Central Government : General. — It has been custom- The classical 
ary to divide the colonies into three classes, according to the thrcoionies 
method of appointing the governor : the Royal, in which 

the governor is the representative of the King; the Pro- mentaries, 

prietary, in which he is appointed by the " proprietor " ; and ^^ 1S9-161. 

the Charter, which have governors elected by the people. Cf.Channing 

A more perfect classification is that susfgested by Professor ^^^^^V'' 

J 00 ./ Qutde, 9 147. 

Osgood, who separates them into Corporation and Provin- 
cial colonies, the former acting as a corporate body, the Professor 
latter in direct dependence on the mother country. In classification. 

many of the colonies we find that the frame of government 

,. , . , . . . Osgood, in 

IS to some extent outlined m a charter or m written instruc- ^. h. a., 

tions with which the system must conform. All had the 1895.617-627. 
three departments of government more or less separated, 
and legislatures in all degrees of development. Each colo- 
nial government was entirely separate from every other, but 
was in close touch with the home government, and in regard 
to most matters subject to its supervision. 

In 1760 the only pure charter colonies were Connecticut and 
Rhode Island. Massachusetts approached the charter form, but had 
a governor appointed by the Crown. Pennsylvania, Delaware, and 
Maryland were Proprietar}-, the rest were Royal. 

66. The Charter as a Colonial Constitution. — Although Nature of a 
so few of the colonies were classified as charter, in one *=^^^''* 
sense all of them showed the influence of the charters Thwaites, 
which most of them had in the beginning. As has been J^^^"^""^"' 
said, these charters were documents issued by the Crown to 
individuals or to incorporated companies giving a grant of 



54 



The Ame^dcafi Federal State 



(On the 
whole sub- 
ject, see 
Moray, in 
A. A. A., I, 
537-544-) 



Development 
of the " char- 
ter constitu- 
tion." 



The per- 
sistence of 
charter gov- 
ernment. 



land, defining the rights of the company, and giving a plan 
for the government of the company. In theory, these char- 
ters were irrevocable by the Crown, though forfeitable to it ; 
but in no way before the Revolution was the right of Par- 
liament to interfere with any charter admitted. The Stuart 
kings did, however, annul charters with impunity and with- . 
out sufficient cause ; but under the Hanoverians this illegal 
practice was discontinued. 

Most of the colonies had possessed charters which they 
in time surrendered or lost, but Massachusetts, Connecticut, 
and Rhode Island continued to govern themselves according 
to their charters until the Revolution. We have already 
seen in some detail how the earliest charters came to be the 
fundamental law of Massachusetts and Virginia, and how 
other colonies embodied in later charters a more perfect 
system of government modelled upon one or the other sys- 
tem. These later charters nominally created corporations, 
so the legal fiction of a trading company was preserved, but 
to all intents and purposes the Connecticut charter of 1664 
was the Constitution of 1639 recognized by the King. It 
thus had the sanction of the people, which was necessary 
to make it a constitution, and the sanction of the King, 
which was necessary to a colonial constitution. While the 
other charters represent these ideas less perfectly, they 
were well enough developed to make them essentially the 
same. 

In those colonies that had lost their charters, the charter 
government was preserved through definite instructions or 
frames of government, and the charter influence is clearly 
seen in the determined protests of the people to any arbitrary 
change of the spirit or form of government. Frequent refer- 
ence was made to the rights of the charter, even though the 
charter itself had long since been annulled. The persistent and 
pretty well recognized claim made by Virginia to the north- 
west territory on the basis of her charter of 161 2 is but a 
familiar example of this. So that to a limited extent all of 
the colonies enjoyed the privileges of a written constitution. 



The Colonial Period 55 

In all of these colonies, if a citizen believed the colonial The princi- 

law conflicted with the charter, he had the right to bring the stTmtioTu""' 

matter into court for settlement, with appeal to the Lords of legislation. 

Trade, so that a principle similar to our present interpreta- ^^' ^ 376. 
tion of our constitutions by the courts was recognized. 

67. The Governor. — In eight of the thirteen colonies A powerful 
the governor was the representative of the King. He was ^,,j^ "^^^ 
appointed by the Crown and removed at pleasure. The 

tenure was usually brief, and the men of a ver)' ordinarj' ump^rarUs, 
tj^pe, with some notable exceptions. ^Miere election was in li, 153-170. 
the hands of the people, the term was one year ; but it was 
customary to reelect a satisfactor}^ official year after year. 
The governor's power varied greatly, according to the ex- 
tent to which the legislature had made good its claim to a 
real share of the government. He had an absolute veto on 
all legislation subject to revision by the King. He usually 
had charge of public lands, made appointments for aU 
offices, including judgeships, exercised the prerogative of 
pardon, had command of all militar)' forces of the colony, 
and was in general the most powerful force in the govern- 
ment. He was usually aided by a council, which in many 
cases was the upper house of the legislature. To this coun- 
cil he looked for adnce, but he was seldom bound by its 
views. The council did not have the control of administration. 

68. The Legislature. — In the roj-al colonies the legisla- General 
tive power was vested in one or two houses and the gov- P°^^'^^- 
emor. In most of the royal colonies the relation of the Story, Com- 
legislature to the executive was much the same as in En^- ff^^j^^^' 
land at the beginning of the seventeenth century (§ 45), 

that is, the assembly had little more than the power of ap- 
proving biUs proposed by the governor. Even in finance 
they possessed little power of initiative. In the colonies 
where local self-government was more common and more 
real, the legislatures introduced most of the bills, though the 
influence of the governor in legislation was considerable. 

By 1 763 the bicameral system was in use except in Penn- Organiza- 
sylvania, Delaware, and Georgia. The lower houses were *^°"' 



s« 



Tkf Ammfatt EttUmi StaU 



in t«'gi»)«^ 
tion. 



iinitAtiou of 



alwaj"* elcv'tevl by the people, either from towns, counties, or 
other districts. The terms were short. Of the upper houses, 
those of Connecticvu aiul Kl\o<le Islxiul were chosen by dis- 
tricts, that of Massiachusetts by the assembly. In the other 
coloi\ies they were usually appointovl directly by the jjovernor. 

When bills had been passevl by the legislature, there were 
several obstacles to be encountered beRne they became 
law*. There was, first, the gvnernor's veto, except in Penn- 
sylvania. Then the law might be set aside as in conflict 
with the charter, if there was «.>ne. «.vr in wnflict with the laws 
of England. This might be done by the judges of the 
cok>ny, or much more commonly by the Lorvls of 'l>ade. 
Finally, it might be rejectevi by the Lords because it was 
objectionable to the King. 

69- Development of a Bicameral System of the Legislature. 
— In spite of the tact that the Ki\glish Farliament with its 
two houses placevl before the eyes of the cv>lonists a legisla- 
tive model, the sitxgle house remained the practice of the 
colonies during ixiost of the seventeenth century. The rep- 
i"eseniatives of the pev>ple s;it with the governor's assistants, 
except in a few instances. An attempt was made by Locke's 
constitution for CaK>lina to establish two houses totally dis- 
tinct, with the exclusive right of initiation vested in the 
upper house, Urt this was never put into practice. In Penn- 
sylvania such a plan was indeevl trievl, but the reaction 
proved so stK>ng that in 1696 the upper house not only lost 
the right of initiation, but was merged in the assembly, 
with which it sat till the time of the Re\x>lution. In most 
of the other cv^lonies the great struggle between the people 
and the governors, during the tirst half of the eighteenth 
century, led to the separation of the two parts of the legis- 
lature so unhke in interests, character, and manner of ap- 
pointment. In New England, although both the assembly 
and the assistants were chosen by the people, the influence 
of the Parliamentary model, the old customs in Massachu- 
setts, anvi the ii\ethod of electing the assistants by districts, 
led evetuuallv to the entire separation of the t\\xt houses. 



The Colonial Period 57 

70. Growth of th« Power of the ColonUl Assembly- — AI- Cootesu be- 
though the popular ajsemblici were everywhere common in ^**" '*** 
1 700, it cannot be said that, out of New Kngland, they were a,„i ih«r «, 



very strong ; but during the next half century they were m:">w»«*w1. 
greatly developed through different contests with their gov- ^f vk*oi^ 
crnors. The governors, representing the King or the proprie- 



rii 11 rL Thwaitet, 

tor, often had a very high opmion of their own prerogative, jhtC^ionUt, 

and a very low one of the rights of the people. The point f/ 123-136, 
of view of the high-spirited assemblies was exactly opposite. Tayk>r, Eng. 
In 1693, as the charter was silent on the subject, Massachu- Omttitution, 
setts had asserted the right of the assembly to originate all '^^'^^' 
money bills, lliis claim had not been allowed by those 
in authority in America or England, but was the basis for 
colonial pretensioas. There was a constant struggle to sec 
whether a regular salary should be voted the governor, or 
whether it should be renewed from year to year, but in 
1735 ^he Lords in Trarie gave up the attempt to make 
Massachusetts vote a regular stipend. In Virginia the as- 
sembly had gained an advantage by obtaining the right to 
appoint a treasurer, so that they were unusually successful; 
but, in general, in the South the governors gained the upper 
hand, while north of Maryland the assemblies won the day. 

It must not, however, be supposed that the contests were 
solely over salaries. It might be over the granting of unoc- 
cupied lands claimed by the governor as the representative 
of the King, or over the taxing of the proprietor's property. 
But whatever it was, it usually was narrowed down so that 
the assembly refused to vote the governor's salary till he 
did as they wished ; and as the governors seldom remained 
long, their temporal needs were more important to them 
than a question of constitutional right, so the assemblies 
usually won. 

These conflicts had both their good and their bad side. Good and 
They caused very great ill-feeling between the people and ^g^^, 
the governors, though that never extended to the King, and 
they constantly interfered with the transaction of busines. 
On the other hand, they maintained the interest of the peo- 



58 



The American Federal State 



The "Let 
alone " 
policy. 



Lords of 
Trade. 

Fiske, Civil 
Gov't, 156- 
157- 

Channing, 
kk 79- 113- 
"5- 

Lamed, 
Hist, for 
Ready Refer- 
ence, 3168- 
3173, 3180. 



pie in public matters, developing a spirit of independence, 
trained a body of men in the conduct of the colonial govern- 
ments, and produced such popular government as existed 
nowhere else on the globe. But even those advantages were 
not unmixed, for the voting classes and especially their 
representatives who were sent to the assemblies often 
attempted to exercise rights to which they had no claim, 
and felt that any invasion of their claims was an act of 
tyranny. 

71. Relation of the Colonies and the King. — During the 
entire colonial period England did not attempt to exercise 
any special control over the colonies. Throughout the seven- 
teenth century the kings had been kept too busy looking 
after Parliament to pay much attention to the colonies, which 
were left to develop much as they pleased. Toward the 
close of the century more attention was paid to the creation 
of councils, commissions, and boards whose members were 
appointed by the King in Council for the purpose of super- 
vising American affairs. In 1696 there was formed a per- 
manent board known popularly as the Lords of Trade, which 
was instructed to correspond with each colony so as to keep 
informed about it and in touch with it, to take charge of all 
matters pertaining to America, to hear all appeals and com- 
plaints and veto laws that were repugnant to the laws of 
England. Either directly or through this board, many 
ministers tried to meddle with the affairs of the colonies, 
though the long period under Walpole was marked by 
leniency of colonial control. The King in Council was able 
to exercise great influence in America through the appoint- 
ment of the royal governors. This official could appoint his 
council (usually the upper house of the legislature, and the 
highest colonial court), and even regulate such details as the 
qualifications of electors, the towns which should be repre- 
sented, and the number of members of the assembly. He 
possessed an absolute veto upon all legislation ; and even if 
he yielded to the assistants, the laws might be nullified by 
royal rescript. 



The Colonial Period 59 

72. Parliament and the Colonies — The exact relation of Different 
Parliament to the colonies throughout this period, and more ^^^^^ s regard- 

ing the 

especially after 1760, was a matter of considerable dispute, power of 
The colonies had from the first admitted the right of Par- Parliament 
liament to regulate commerce largely because the ilhberal ^^^^ 
navigation and sugar laws were not enforced. It was ad- 
mitted on both sides that no law of Parliament should apply United states 
to the colonies unless they were especially mentioned in it. (1765-1865), 
Perhaps it was this, perhaps the dread of interference from ^ ^^' 
any government not of their own making, that caused the Frothmg- 

1 • ■ n ■ T.- T- 1 1 • 1 T^ T \\^Xi\, Rise of 

colonies more especially m i\ ew England to consider Parha- the Republic, 
ment merely an English legislature, while it was looked upon 123-127. 
in Britain as the law-making body of an empire. At any 
rate, although all of the colonies at some time or other rec- 
ognized the supremacy of Parliament in all matters except 
that of taxation, they often bitterly opposed a specific appli- 
cation of this imperial power. Taxation was not included 
because, according to the theory of English and colonial 
Liberals, taxes were a grant of the people and not a legislative 
right. This led them in time to argue that taxation with- 
out representation was tyranny ; and that, as they could not 
be represented in Parliament, the right of taxation belonged 
exclusively to their colonial assemblies. 

73. Political Freedom. — We have already noticed to what Popular par- 
degree the colonies were self-governing. Beginning with ticipation m 
the two repubhcs which elected practically all of their 
officials, local or general, we run through a series of changes 

until we find colonies especially south of Virginia which had 

no local self-government and with popular assemblies of 

little power. Except in New England, Virginia, Maryland, 

and Pennsylvania, the early history of the colonies shows that 

the people had little or no influence. Later, assemblies were 

established though called irregularly, and in some instances 

a share in the local government was permitted. But for 

about half the colonies the system of suffrage was at all times Suffi-age in 

illiberal and largely dependent on the -ndll of the governor. * ^ colonies. 

In Virginia the suffrage came to be greatly restricted so that 



6o 



The Avicrican Federal State 



Colbv. in 
Lalor. Ill, 
824-835. 

Cleveland, 
Groxvtk cf 
ZitmocTiity, 
130-142. 

Bishop, 
EUitu'^ns in 
the Cdonits, 
46-97. 

See Hurt. 

rus, II, 171- 
>73- 



Rfstiictions 
on tr.ule ; 
n.ivig.tlion 
acts. 

Channing, 
{^^ 79. "4- 

Beers, Com- 
merciitJ /\>I- 
icy ofEt^\, 



but a small portion of the population voted at all, while the 
holding of office was in the hands of the highest class. In 
New England the religious qualifications of voters were 
finally abolished (1691) through the efibrts of the Crown, 
and property substituted. This excluded about nine-tenths 
of all adult males from participation in colonial elections, and 
at least half from taking part in the town meetings. Even 
Rhode Island abandoned her earliest principles and joined 
in the general movement. The only exception was Penn- 
sylvania, which proved true to the principles laid down by 
Penn, but even here the voter must be a freeholder or have 
paid taxes. In general, we may say that during the eigh- 
teenth century religious tests excluded all except Protes- 
tants from voting ; while in the North property of a certain 
value was required, and in the South estates of a certain 
size were necessary. 

74. Economic Freedom. — The spirit of the seventeenth 
and eighteenth centuries was much less favorable to economic 
freedom than our own. The feeling that one country was 
made wealthy by impoverishing another was quite common, 
and many felt that they were benefited by the restriction of 
the privileges of others. Colonies were considered sources 
of profit rather than real parts of the mother country. The 
navigation laws passed by England were in harmony with 
these ideas, for they sought to prevent trade between the 
colonies and other countries than England, and discriminated 
against all but English imd American ships. Commerce be- 
tween difterent colonies was forbidden (,16 73"), manutacturing 
was practically prohibited (1719, 1733). and trade in the 
most profitable articles of New England was greatly ham- 
pered because of the duties on sugar and molasses (1733). 
It is well known that these laws were not enforced before 
1 760. but had that been done, great hardship must have 
followed. Vet England was not alone in this unwise dis- 
crimination. Each colony passed numerous laws of a similar 
character. Foreigners, even Englishmen, found difficulty in 
carrying on many kinds of business. Legislation in favor of 



The Colonial Period 6i 

the governing classes was the rule everywhere, and even the Narrow 

details of living were not free from governmental interference. P*'''*^. °' •*** 

° ° colonies. 

Laws to regulate the price of labor were passed at frequent 

intervals, though without effect. Custom often rendered it jJ^^^iaiEvo- 
difficult to break away from the parental occupation, and lution of the 
apprenticeship regulations hampered mobility of labor. Yet ff ^•' ^'♦• 
in spite of these annoying restrictions it may well be doubted 
whether any other country on the globe possessed the eco- 
nomic freedom of America. 

75. Social and Other Inequalities. — It is customarj' to make Prominence 
a distinction between the Northern and the Southern colo- °^*='*5^s. 
nies, and say that classes existed in one, but not in the other. Channing, 
While the South did possess more numerous and better de- (i^gL/seo" 
fined classes, the statement is far from being true. Among 15, i6. 
the whites of the North, social lines were drawn quite sharply. 
We cannot show this better, perhaps, than in the statement 
that even after 1770 the students of Har\'ard were classified 
according to social standing. The English idea of social 
inequality had a strong hold every'where, least, perhaps, in 
Pennsylvania, and most in the South. In the Middle and 
Southern states there were, however, elements which made 
classes more marked. Here we find in great numbers two 
kinds of indented ser\-ants who were practically serfs for a 
term of years. The first, called redemptioners, bound them- 
selves to service in order to pay their passage, the second 
were convicts working off a sentence. Toward the latter 
class, especially, laws were ver}' severe, and treatment was 
far from humane. 

Little was done during the colonial period to improve the Lack of care 
condition of the poorer or defective classes. Temporary ^",^"5"^°"^"" 
relief was given through special officers, but no provision 
was made for the aged, for the blind, or the insane. Hos- 
pitals were scarce, and the prisons were of the worst descrip- 
tion. Everj-where laws regarding debtors and criminals 
were harshly enforced. There was as yet little thought of 
the duty that the State owed her unfortunate classes. 

Outside of New England all of the colonies had adopted 



62 



riw Aiiinicaii lu-iirial Stiitc 



Iiilioriliince 
laws. 

Story, Com- 
wentaries, 
\\ 179-181. 

Household 
ami plantii- 
tion slaves. 

I lart, Forma- 
tion of the 
Union, \ 10. 

Ch. inning, 
lhiit,-d 
states (1765- 
1865). 12-14. 

Opposition 
to union. 

Fiothingf- 
ham. h'ise of 
the Republic, 
i39- 



Forces favor- 
able to 
union. 



Tlie New 
England 
Confedera- 
tion. 

Channing, 
kk 72, 73- 



the English ciustom in leaving the whole of an estate to the 
oldest son. In the Piuitan colonics, a double portion went 
to the eldest, the rest sharing equally. 

76. Slavery. — Slaves were introduced into Virginia as 
early as 1619, and were to be found in every colony in 1760. 
At the North, and at first at the South, they were usually 
house servants, and as a rule were treated with consideration, 
if not with kindness. It was only when the whites began to 
employ large numbers on the plantations ami rice fields 
of the Soulli that harsh laws were passed. Yet before the 
Revolution the Southern leaders inatle efforts to prevent the 
further importation of slaves, though without success. 

77. Union before 1750 : New England Confederation.— There 
was very little real unity in spirit or in government among 
the colonies. Each had perfected its own peculiar system 
in such absolute isolation that the thought of union seemed 
to mean nothing more nor less than a surrender of rights to 
the very one who had refused to acknowledge those rights. 
The reason for this feeling lay in the fact that attempted 
union was ordinarily proposed by the Crown for the j)urpose 
of better controlling the colonies, as had been the case when 
Andros was given control of New England in 1687. The 
fact that union under such conditions was not perfected is, 
of course, an almost unmixed blessing. 

There were, however, other forces working toward union, 
though none of them, aided as it was by the many common 
bonds of a similar language, customs, and institutions, was 
strong enough to overcome the prejudices of the people and 
their fear of the Crown. Among these forces the most pro- 
nounced and most influential was the dread of a general 
Indian uprising. It produced the New York Congress of 
1690, and that at Albany in 1754. It was, in fact, the funda- 
mental cause of the New England Confederation of 1643. 
This loosely joined league of four colonies (Massachusetts 
Bay, Plymouth, Connecticut, and New Haven) was not a very 
high type of union, as the central government was composed 
of two commissioners from each member with a number of 



The Colonial Period 63 

nominal powers relating to matters of common interest, but Frothing- 
absolutely w-ithout power to enforce their requests. It did ^^"^' '^"'•' 
not interfere with local government in any way, as each 
colony was left complete control of its own affairs. It was stiuttion.zv)- 
of some value in the regulation of inter-colonial extradition, 221. 
and rendered the efforts of the colonies against the Dutch, 
and much more against the Indians, very effective. Its 
religious narrowness is shown by its refiisal to admit hereti- 
cal Rhode Island and unbeUe\'ing Maine, and its usefulness 
was constantly impaired by the continual opposition of its 
largest member, Massachusetts; but for fony years it not 
only made the action of the colonies more effective, but 
trained them for united action. 

78. Albany Plan of Union, — Other plans for union were ltspro%-i- 
not wanting, notably one proposed by Penn in 1698, and ^'°°^ 
many congresses were held at which from two to five colonies C-ark, CivUs, 
were represented. The most important of the congresses and "^ ^' 
the most valuable of the plans of union were those of Albany F'rotiiing- 

ham, Hid., 

in 1754. The congress was called to make a treaty with the 132-151, 
Iroquois in order to prevent them from aiding the French in . 
the coming struggle. Seven colonies were represented by Hist, for 
some of their best men. The making of the treaty was ^''^'^y Refer- 
quickly overshadowed by the recognized need of miUtary 2178. 
union. A plan was proposed by Franklin, and adopted with 
few changes, which proWded for a president-general appointed 
by the Crown to be the executive and militar}' commander 
with power of appointment. The colonies were to be repre- 
sented in an assembly according to the amount they paid 
into the treasurj' of the union. Although mainly an adnsory 
body, this a^embly had power to le\y duties and colonial 
taxes through requisitions upon the colonies, to which all 
existing rights were guaranteed, ^\^lile the plan was unani- ^y ^ ""^ 
mously adopted by the congress, it was universally condemned 
by the legislatures of the colonies, and failed of approval in 
England. The remark made by Frankhn regarding this 
action shows at once the reason for its failure and the feel- 
ing of the colonies and the Crown toward each other, " The 



64 



The American Federal State 



Was the 
colonial 
development 
" English " or 
" Ameri- 
can " ? 

Hart, Union, 
§5. 

Wilson, 
The State, 
$$ 1060-I064. 



England and 
America start 
from same 
point (1600), 
and develop 
along differ- 
ent lines. 



assemblies all thought there was too much p?-erogative, and 
in England it was thought to have too much of the demo- 
cratic." The time was not ripe for concerted action ; 
nothing less than a great national movement could create 
the great national need of Union. 

79. Comparison of American and English Constitutional 

Development (1600-1770). — If the question were asked how far 
the constitutional development of the colonies was English, our answer 
would depend entirely upon what was meant by "English " in this case. 
If we meant English in the sense that the English spirit of sturdy inde- 
pendence had been preserved, that English methods of steady develop- 
ment were clearly apparent, that an inheritance of English law and 
English institutions was at the very basis of the whole legal and political 
system, we should ansYi^er that American development was little dif- 
ferent from English. But if we seek to make " English " synonymous 
with the constitutional development of England from 1600-1770, and 
look upon the colonies merely as a part of England, we are amazed at 
the difference displayed. In a sense we may say that constitutional 
development in England and America started from much the same 
point in 1600, and under conditions quite unlike developed along very 
different lines in the most natural way possible. But starting from the 
same point refers rather to a common heritage of law, liberty, and local 
institutions than to the more advanced form of government. So far as 
local institutions are concerned, we find every form of the manor and 
parish transplanted to America, and put into practice by men from 
almost every class of English society. But in the development of cen- 
tral government, a totally different set of conditions plays the most 
important part. In the first place, we find a trading company's charter 
transformed into a quasi-yfriittn constitution, unalterable except by 
mutual consent of the grantor and the grantee, and setting a standard 
according to which laws may be kept or set aside. Nothing could be 
more foreign to that fundamental English idea, the supremacy of the 
legislative body, whether that power was vested in the Crown and 
Parliament or in Parliament alone. While the forms of central govern- 
ment in the colonies were so entirely different from those of England 
at first, being nothing but the enlarged governing body of the company, 
they grew to be more alike. By degrees conscious or unconscious 
imitation led to the introduction of the representative system, the 
erection of a separate judiciary, the development of a bicameral system 
of the legislature with the upper house a partly administrative and 
partly judicial body like the House of Lords, and a separation of legis- 
lature and executive in the end much more complete than that which 



The Colonial Period 65 

existed in England. At every step, American conditions produced a 
modifying influence upon the English forms introduced, so that had 
England been in 1760 -what she was in 1625, there would have been 
a great difference between the two countries in the more complete 
separation of departments in America and in the different relations 
of the departments to one another. But the central government of 
England was in 1760 very different from that of 1625. The old system 
of a ministry dependent upon the King has been largely replaced by 
one dependent upon the Parliament, so that the veto no longer existed 
as in America. The English executive and the legislature have always 
been in theory and in practice but different parts of the same body, 
with one part controlled by the other, and even the bitter contests 
between Parliament and the Stuarts failed to separate them as they 
were separated in x\merica, but gradually shifted the chief power from 
the King to the Parliament. 

Besides these differences in the Constitution and in central institu- American 
tions, there had grown up a difference in civil and political liberty, conditions 
The rough frontier life had produced an equality that could never exist '"°'^^ avora- 



in England. Harsh and bigoted as many of the colonial laws appear, 
they were in advance of those in force in Europe. Outside of the 
colonies almost the only persons that voted for representatives to a 
central government were in England, and yet the assembly of Massa- 
chusetts was vastly more representative than Parliament, and the 
suffrage in Connecticut was five times as liberal as that of Yorkshire, 
while the proportion of voters in Pennsylvania was twice as great as in 
Connecticut. The small size of the colonies had trained a large class to 
do what a few members of the community did in England, so that the 
average American was much more zealous of his rights than the average 
Englishman. From this hurried sketch we can easily see how far apart 
England and America had been carried by the constitutional develop- 
ment of the seventeenth and half of the eighteenth centuries. 



QUESTIONS AND REFERENCES 
Introductory (§§ 51-54) 

1. 'WTiat was the European idea of a colony ? (Thwaites, 18-22.) 
Compare with the Greek and the Roman idea. Compare the Spanish 
rule with the English rule. (Moses, Spanish Rule, 17-26.) 

2. WTiat is the difference between a land grant, a charter, and a 
constitution ? Apply your definitions of the last two to Magna Charta, 
Bill of Rights, and fundamental orders of Connecticut. 

3. To what extent did typography and church institutions influence 

F 



ble to liberty. 



66 The American Federal State 

the customs and institutions of Massachusetts, Virginia, and Penn- 
sylvania ? 

4. How do frontier settlements tend to modify the institutions of 
any country which are transplanted to them ? 

5, What right had the King to change a charter ? to recall it at 
will ? 

The Southern Colonies (§§ 55-58) 

1. What English institutions were brought to Virginia ? 

2. Compare the Virginia charters of 1606, 1609, and 1612 as to terri- 
tory and government. 

3. What influence did tobacco have upon (a) the growth of Virginia, 
(J)) the social classes, (<r) the establishment of the county system of local 
government ? 

New England (§§ 59-62) 

a. On the Puritans, see Eggleston, Beginners of a N^ation ; Ellis, in 
Winsor, III, 219-244 ; Palfrey, AVrc England, I, 101-132 ; Osgood, 
The Political Ideas of the Puritans, in P. S. Q., VI (1891), 1-28, 20I- 
231 ; Channing and Hart, Guide. 

1. Is the union of Church and State a modern idea ? Did the Puri- 
tans believe in religious freedom ? 

2. How did the Puritan spirit show itself in the dealings of Massa- 
chusetts with Roger Williams and with England ? Was there any 
justification for their actions ? Any advantage from their course ? 

3. Compare the central governments of Massachusetts in 1640, 
1687, and 1700. 

4. Compare the government of the townships and the counties in 
Anglo-Saxon England, England in i6oo, Massachusetts in 1650, and 
Virginia in 1650. 

Middle Colonies (§§ 63-64) 

1. To what extent has the compromise sA-stem of local government 
been adopted throughout the United States ? 

2. Why did the local governments of the colonies influence our later 
history more than the central government ? 

3. Did Massachusetts or Pennsylvania exert the greater influence on 
our later history, and in what ways ? In which were the political and 
social ideas more like those of to-day ? 

Colonial Government (§§ 65-72) 

a. On England and the colonies, see Lamed, 3168-3173, 3180 ; 
Story, Commentaries, 1S5-190; Lecky, England in XVIII Century, 



The Colonial Period 6j 

III, 321-331, 342-345 ; Osgood, England and the Colonies, in P. S. Q., 
II, 440-460 ; Hazeltine, A. H. A. (1894), 299-350 ; Chalmers, 
OpinioTts. 

1. Study the history of charters in the Middle Ages and in modem 
times. Can charters be revoked or changed in the United States at 
present ? Trace the growth of the written constitution from the 
charter. 

2. Is the colonial governor a reduced copy of the English King ? 
Prove your answer by comparing their powers, etc. 

3. Compare the assembUes in the royal colonies with the House of 
Commons as to power before 1 688 and in 1760. Did the Revolution of 
1688 have the same influence upon the legislatures in England and in 
America ? 

4. WTiat are the advantages of a bicameral over a unicameral legis- 
lature ? Judging from the historj' of Europe and America, is a legis- 
lature of two houses the natural result of political evolution (cf. § 256) ? 

5. State what causes of dispute there were between the governors 
and the assemblies, and in which disputes the assemblies were successful. 

6. Was the relation of the King to the colonies different in 1760 
from what it was in 1620 ? of the Parliament ? 

Liberty and Union (§§ 73-79) 

a. On union, see Clark, Civics, 9-15 ; Frothingham, Republic, 
chaps. II, IV ; Fisher, Ezoluiion of the Constitution, chaps. W, VII ; 
Crane and Moses, Politics, 1 26-141. 

1. Compare the civil, political, religioiis, and economic freedom of 
ancient Rome, Anglo-Saxon England, Massachusetts in 1650, and Vir- 
ginia in 1650. 

2. In what respects had the colonists more or less political liberty 
than the English ? Indicate fully different changes in the suffrage 
during the colonial period. WTiat differences in qualifications for 
voting existed in 1763 ? 

3. WTiat advantages were derived by the South from slavery before 
1763? 

4- Enumerate the principal influences leading to union during the 
colonial period. \STiy did they effect the North more than the South? 



CHAPTER IV 

THE REVOLUTION (i 763-1 787) 

General References 

Hinsdale, A?>ierican Government, 52-86. 
V' Channing, Student's History, 152-255. The best brief account. 

Channing, The [/nited States {lyG^-iSS^), 41-124. 
v' Hart, Forniation of the Union, 42-119. A model of careful condensa- 
tion. 
V' Sloane, French War and Revolution, 1 16-388. Gives a scholarly 
presentation of the causes of the Revolution, though lacking in 
definiteness. 
\^z]ker, Maki7tg of the N'aiion, 1-19. 
Green, Short History of the English People, 757-786. Impartial, English 

Liberal view. 
Lecky (Washburn), Atnerican H evolution. The best English account. 

Conservative standpoint. 
Trevelyan, American Revolution. (Part I published.) 
Fiske, Ajnerican Revolution. 2 volumes. 
Fiske, Critical Period of A?)ierican History. A narrative history of 

exceptional excellence. 
Frothingham, Rise of the Republic, 158-583. Invaluable for facts. 
'< Thorpe, Constitutional Histojy of the American People, \, 1-2 10. 

Winsor, America, VI-VII. 
/ Bancroft, United States, II-V; VI, I-194. 

Curtis, Constitutional History of the United States, I, 1-230. Ex- 
cellent. 
V McMaster, History of the People of the United States, I, 1-389, especially 
chap. I. 
Lamed, under United States. 
v' American Statesman, lives of Samuel Adams, John Adams, Patrick Henry, 
George Washington, Benjamin Franklin, and Thomas Jefferson. 

80. Character of the Revolution. — The colonial period 
closed with the fall of Quebec and the transfer of Canada. 
The " French and Indian " War brought in its train a series 

68 



The Revolution ^ 69 

of problems the solution of which greatly affected the in- New Eng- 
ternal government of Great Britain and her relation to the ^'^^ policy 

conflicts 

colonies she already possessed. England had just changed whh colonial 

kings, and the new monarch was anxious to carry out a i<isas of seif- 

" strong " policy at home and abroad in order to increase s°^^"^™^°- 

the prestige of England, but through himself and in his own ^^ Mace, 

Aletkod in 

way. The attempt to solve these colonial problems which History, 105- 
were thrust into prominence by the war with France led i^^. 
the King, his ministers, and his Parhament to assert their 
right to the exercise of certain powers over the colonies : 
powers which were perhaps necessar}' in order that they 
should be considered English colonies and not English 
states, but powers which had not been used to any appreci- 
able extent by their predecessors. The attempt to enforce 
laws made for the colonies on this theory invaded what 
some of the colonies considered their sphere of government, 
this was especially true of the laws regarding taxation. This 
invasion aroused opposition, the opposition produced arbi- 
trary rule which in turn led to open rebeUion on the part 
of the colonies, and that meant poHtical revolution. 

81. Effects of the Revolution. — T\\e. political reiwlution Union of the 
proceeded along two lines, and the results produced were colonies and 

1 rT-.i /- • /- T^ 1 1 separation 

simultaneous. The first was separation from England, the from Great 
second union of the colonies. The first, being negative and Britain, 
destructive in character, was accomplished by force much 
sooner than union was completed, as that called for con- 
structive political intelligence. But the effects of the revo- Resulting 
lution were more than poUtical. The colonies had asserted '^^^"ses m 

^ societj'. 

their right to self-government and had appealed to the 

rights of man. The inevitable consequence was that the ^ 17?°'"^' 

most glaring inequalities, political and social, were doomed. 

The period immediately succeeding the Revolutionary War cai Period, 

saw many of them swept away, but it took time to greatly 69-87. 

alter the estabhshed order of things, and it was several 

decades before the revolution spent its force. 

82. The Situation in 1760. — As we have already seen, the 
colonies had been developed separately before 1760, so that 



70 



The American Federal State 



Means of 
controlling 
the colonies. 



Possibilities 
of union and 
separation. 

Scott, Recon- 
struction dur- 
ing Civil 
War, 43-63. 

Story, Com- 
mentaries, 
§§ 162-182. 



any control over them by England was over each colony 
and not over the colonies as a whole. There were in theory 
four ways in which the King or Parliament might exercise 
this control: (i) by regulating the external trade of the 
colonies without the levying of taxes in any form ; (2) by 
the laying of duties on goods imported by the colonies ; 
(3) by supervision of internal government ; and (4) by levy- 
ing internal taxes. For reasons that are best explained by 
the history of England from 1630 to 1760, this control was 
much more lenient in practice than in theory, so that while 
laws were made covering the first three subjects just enu- 
merated neither King nor Parliament had ever attempted to 
lay internal taxes on the Americans, and few of the laws that 
were enacted were ever enforced. This lack of careful 
administration of British laws had made the colonies content 
with English control, but had left the way open for a large 
degree of government by the people. 

Apparently, at least, separation from Great Britain was 
a long way off in 1 760, and possible union of the colonies 
seemed little nearer. This is all the stranger because the 
colonists differed from one another very little in race and 
general character. All spoke the same language, had much 
the same religion, with similar restrictions everywhere, were 
more or less alike even in their occupations. A common 
heritage of the English law, the same political institutions 
and ideas, the same feeling of pride in the rights of English- 
men and in the reasonableness of a large measure of self- 
government, all tended to make union natural and probable. 
The forces working against union must therefore have been 
very powerful, and of these two were especially important : 
(i) the fear that unity meant more government by England 
and less by themselves ; (2) a feeling of localism and, to 
some extent, of sectionalism, which was the result of a cen- 
tury and a half of isolation and separate development, and 
which derived permanent strength from a deep-rooted belief 
that even if union did not increase England's control over 
them, it would tend to destroy the power of each colony. 



The Revolution 



71 



83. New Colonial Policy of Great Britain (1760-1765). — 
That these barriers between the colonies were broken down 
was due to the action of Great Britain : first, by enforcing 
more strictly the old laws, particularly the na\ngation acts, 
made for the control of her American possessions ; and 
second, in attempting to assert the right of Parliament to 
levy internal taxes. This policy seems to have been adopted 
by the British government for the triple purpose of pa}dng 
part of the debt incurred during the late war with France, 
of supporting an army to protect the colonies from threat- 
ened uprisings of the French and Indians, and of increasing 
its own power over the colonies. 

As it was found practically impossible to collect the duties 
under the nav^igation acts by the means formerly employed, 
the collectors resorted to the use of writs of assistance, or 
general search warrants, which gave them the right to invade 
private premises and seize smuggled goods wherever found. 
The merchants of Boston protested against the use of the 
writs, and employed James Otis to defend them in a suit 
invohing their legality. In a speech now famous, Otis 
claimed that the writs were an instrument of t}Tanny, which 
were unwarranted by the English constitution, and therefore 
in direct violation of the rights of EngUshmen, to which the 
colonists were entitled by their charters and the laws of Par- 
liament The court took no action for some months, but 
subsequently issued vrrAs, in a few instances. 

To gain still further revenue a change was made (1764) 
in the sugar act of 1733 by reducing the old duties, which 
were prohibitory, but at this date it was expected that the 
necessar}' money would be obtained from internal rather than 
colonial taxation. 

84. The Stamp Act (1765) . — This internal taxation, pro- 
posed by the British government in 1764 and enacted into 
law in 1765, was to be in the form of a stamp tax upon news- 
papers, books, deeds, wills, and other legal papers. It was 
similar to one that had been tried several years in England 
and was thought to be easily collectable. But the passage 



Aggressive- 
ness of Great 
Britain. 



Objection to 
the use of 
writs of as- 
sistance. 

Channing, 
§§ 115-117. 



New duties 
on imports. 



Pro\isions 
and recep- 
tion. 

Hart, Forma' 
tion of the 
Union, k \ 25- 
26. 



^2 



The Anierican Federal State 



Channing, 
^^ 1 19-124. 



The Stamp 
Act Congress 
and repeal of 
the act. 

Clianning, 
iS^ 125-126. 

Mace, 
Jlfafti/a/ of 
Amef. Hist., 
145-15 1 (text 
of dec. of 
rights). 

Larned, 
Hist, for 
Rt-ference, 
3190 (text). 



New forms 
of external 
taxation. 

Channing, 
\S^ 127-13 1. 



of the act aroused a storm from New England to the South. 
The agents for the collection of the tax were forced to resign 
before it went into effect, rioting and disorder occurred, and 
the whole country was as much aroused as though invaded 
by a foreign foe. Virginia took the lead, under Patrick 
Henry, in passing a Declaration of Rights, and ISIassachu- 
setts followed by calling on the other colonies to take some 
concerted action. 

On October 7, 1765, representatives of nine colonies met 
in Congress at New York and formulated a Declaration of 
Rights. These stated that Americans were subjects of the 
Crown and entitled to the rights of EngHshmen ; that the 
power of granting taxes, personally or through representa- 
tives, was one of those rights ; that the colonies could not 
be represented in Parliament ; and that ** no taxes ever have 
been or can be constitutionally imposed on them but by 
their respective legislatures." This was chiefly valuable as 
a formulation of the colonial view that the colonies should 
have the exclusive right of internal taxation ; but, coupled 
with the resistance to the Stamp Act, it led to the repeal 
of that law. The repeal was, however, accompanied in the 
declaratory act by a statement of the imperialist view that 
the colonies are " subordinate unto and dependent upon the 
Imperial Crown and Parliament of Great Britain ; and that 
ParUament hath, and of right ought to have, full power to 
make laws and statutes of sufficient force and validity to bind 
the colonies and people of American subjects to the Crown 
of Great Britain in all cases whatsoever." 

85. The Townshend Acts (1767). — The union sentiment 
created by the opposition to the Stamp Act, and voiced in 
the Stamp Act Congress, might ha^•e been purely temporary 
but for the determination of the British government not to 
drop the matter. The next method of exercising control 
over the colonies was through external taxation, which in 
1764 was admitted to be within the powers of Parliament, 
but which in 1767 led to non-importation and resistance. 
The articles subjected to duty under this new law were 



The Revolution 73 

imports of glass, paper, lead, painters' colors, wine, oil, and 
tea, but all of these duties, with the exception of that on tea, 
were abolished the next year. 

At the same time Parliament passed several offensive Laws inter- 
measures of doubtful legality, providing for the payment of ^^"i^s ^^'^h 

■ c ^ u,- , ,• • internal gov- 

the governors without action of the assembhes, legahzmg emment of 
the writs of assistance and the trials of revenue cases without ^^^ colonies, 
juries, and suspending the New York assembly because it 
had failed to vote money for the troops quartered in the 
colony. These unjust and despotic measures called forth 
from the Massachusetts legislature a protest and a circular 
letter to the other colonies, setting forth its objections to 
the Townshend Acts and asking their cooperation. The 
British colonial secretary immediately notified the governors 
to dissolve the assemblies in case they accepted this invita- 
tion. And so the trouble grew. Arbitrary measures on the 
part of Britain caused protests from the assemblies and dis- 
order on the part of the colonies, leading in turn to dissolu- 
tion of the assemblies and attempt to overawe the populace 
by the presence of troops. 

86. The Committee of Correspondence. — The attempt on the Formed to 
part of England to interfere with the existing government in the """^ *^^ 

i-/-.r 1 \'- 1- opposition to 

most refractory of the colonies (Massachusetts) in time made it arbitrary 
necessar}' for the American leaders to perfect some kind of a British 
political organization with two ends in view : first, to continue r m • 

the government thev had previously used : and second, to Fiske, Amer. 
unite the opposition to the acts of the mother country, ror 
these reasons Samuel Adams had little difficulty in persuad- p°'W"S- 

■' '■ ham, 

ing the different towns of Massachusetts (1772) to select Republic, 

committees which should define their rights and keep in 261-274, 

279-284, 
touch with similar committees in other towns. This model 

was adopted the next year for intercolonial committees 

which were established in most of the colonies. These 

committees could take the place of the colonial assemblies if 

the latter were dissolved ; and, taken together, formed an 

intercolonial political organization of no small importance. 

They represented a high degree of real unity, for they not 



74 



The Avicrican Federal State 



Effect of the 
" intolerable 
acts " of 
X774* 



The Declara- 
tion of 
Rights 
(1774). 

Curtis, 
Const' I Hist, 
of U. 5., I, 
6-17. 

Scott, RecoH- 
structioH, 
66-73, 401- 
403. 



only helped to unify public sentiment, but to render eflfec- 
tive any action that seemed desirable. 

87. The First Continental Congress. — Matters were now 
going from bad to worse. This disorder in Massachusetts, 
culminating in the Boston Tea Party (i 773), induced Parlia- 
ment to pass several repressive acts (1774) aimed especially 
at that colony. Not only was Boston harbor closed to com- 
merce, but a military government was appointed, and parts 
of the Massachusetts charter were suspended. So united 
had the colonies become in their opposition to England's 
policy that they made the cause of Massachusetts their 
own, believing that their liberties and governments were no 
longer safe from attack, so that when a call for a congress 
was sounded by the Massachusetts legislature, all except 
Georgia hastened to respond. The governors were by this 
time fully alive to the meaning of the movement and dis- 
solved assemblies and forbade participation in the congress, 
but without effect. The people, as well as the leaders, felt 
that the time had come for them to act together. By legis- 
latures, conventions, or colonial committees of correspond- 
ence, delegates were chosen to meet in Philadelphia in 
September, 1774. 

It was an able body of men that met to discuss the situa- 
tion ; but it was a most irregular body, lacking legal status, 
and claiming no legislative power. . Its principal acts were 
the making of addresses to the people of Britain and the 
colonies, and the formulation of a Declaration of Rights. 
The latter reiterated the principles of 1765, and defined 
more explicitly the attitude of the colonies toward control 
by England. They claimed for the legislatures " free and 
exclusive power of legislation in all cases of taxation and in- 
ternal policy subject only to the negative of their sovereign 
in such manner as has been heretofore used and accus- 
tomed." But they admitted that Parliament might regulate 
commerce for mutual benefit with no right of taxation. It 
was a moderate statement of the American view, and in its 
attempt to make reconciliation with Great Britain did not 



The Revolution 75 

go as far as all the leaders felt just and proper in denying to 
King and Parliament all means of control except by regula- 
tion of foreign commerce without revenue. 

The influence of the Congress on the development of American 
union was greatly increased by the organization of an AssociaUon. 
American Association for non-importation and resistance. 
All towns in the colonies were to have their branch to super- 
vise the action of every individual in America. This was 
supplemented especially in New England by a military 
organization based upon similar principles. 

88. Second Continental Congress. — Resistance had be- Composition 
come rebellion before the members of the second Continen- ^°^ powers, 
tal Congress assembled. This extraordinar}- body, the only Story, Com- 
central government for six years of war, had been called by t c ' 

the Congress of 1774, and was made up of members chosen 
by conventions of the people in the several colonies. It const' i Hist. 
was different in character and in the sentiment it repre- °f ^- ^- L 
sented from any previous Congress, and found itself face to 
face with the problems of war. As the sole representative of 
the colonies in union it could do no less than temporarily 
act as the legislative and directive body of them all, since 
all had made common cause against Britain. As a matter 
of fact, it was compelled to do much more. It had hardly 
been in session a month before it decided that there must 
be an " American confinental army," and later in the year 
(1775) action was taken providing for privateers and a 
navy. The 2 2d of June it dared to deal with the much 
mooted question of finance. An issue of paper money was 
ordered and national loans were authorized. It boldly took 
up the subject of trade the second week of its existence, 
prohibiting that with Great Britain and her other colonies, 
making that \vith other nations free, but shutting off the 
slave trade. It appointed boards to take charge of different 
matters and assume relations of a diplomatic nature. It 
advised the colonies in regard to the formation of inde- 
pendent state governments, and finally it declared them 
independent of Great Britain. 



76 



The American Federal State 



Authority. 

Schouler, 
United 
States, I, 13. 



Desire for in- 
dependence 
bill slowly 
formed. 

Hart, Union, 

lobnston, in 
Lalor, I, 
743-745- 

Sloane, 
French I \ 'ar 
and Rei'olH- 
tion, 216-226. 



For the exercise of all these powers of sovereignty, it 
possessed no real legal authority. What it had rested upon 
the credentials and instructions of the delegates to the 
Congress, the unquestioned need and otherwise absolute 
lack of a central organization, the hearty popular approval 
of and public acquiescence in the acts of the Congress. 

89. History of the Declaration of Independence During 

the years from 1763 to 1776 the continued aggressions of 
the British government upon the asserted rights of the colo- 
nies had created an opposition to her authority which had 
been steadily developing from protest and remonstrance, 
through threatened revolt and actual revolution to the com- 
plete separation of Great Britain and America. The inevi- 
tableness of independence had been foretold by the most 
ardent American leaders for years, and was quite generally 
recognized by July, 1776. Beginning with the Mechlenburg 
resolutions of 1775, counties, towns, and colonies had been 
sending to Congress meiiiorials asking that independence 
be declared. These came more especially from New Eng- 
land, as the Middle colonies and the far South up to the first 
of January, 1776, had remained loyal to England and were 
opposed to severing their connection with her. The growth 
of a spirit of independence in all sections, however, was 
much quickened by the appearance early in 1776 of Paine's 
Common Sense, which was widely read. During the spring 
of that year there were long debates in Congress on the 
subject, but it was decided to wait until separation was de- 
manded by the majority of the people. In spite of the 
opposition of a large body of consen-atives, this seemed un- 
questioned when Congress, on May 15, 1776, passed a reso- 
lution recommending to the colonies that they form state 
governments, and still less questioned when Lee introduced 
on June 12a resolution stating that the colonies should be 
free and independent. A committee of five, composed of 
Thomas Jefferson, Benjamin Franklin, John Adams, Roger 
Sherman, and Robert R. Livingston, was at once appointed 
to draw up a declaration of independence, and the report of 



The Revolution 



77 



this committee \vritten by Jefferson was adopted by the 
Congress with a very few alterations upon the fourth of July, 
1776. 

90. Character of the Declaration — Independence of Great 
Britain had been asserted because the colonies believed they 
had a right to govern themselves in their own way, and the 
mother country had not permitted them to do this. We 
can perhaps see most clearly why our forefathers took this 
stand if we examine certain parts of the Declaration. The 
second paragraph, for example, gives some of their views 
upon government. " We hold these views to be self-evident, 
that all men are created equal, that they are endowed by 
their Creator \^nth certain unalienable rights, that among 
these are hfe, liberty, and the pursuit of happiness. That to 
secure these rights, governments are instituted among men, 
deriving their just powers from the consent of the governed. 
That whenever any form of government becomes destructive 
of these ends, it is the right of the people to alter or to 
abohsh it, and to institute new government, laying its foun- 
dation on such principles and organizing its powers in such 
form as to them shall seem most likely to effect their safety 
and happiness." After enumerating a long list of acts of 
George III which had aimed to overthrow these rights, the 
signers " in the name and by authority of the good people of 
these colonies, solemnly publish and declare, that these 
united colonies are, and of right ought to be, free and inde- 
pendent states, that they are absolved from all allegiance to 
the British Crown, and that all political connection between 
them and the State of Great Britain is, and ought to be, 
totally dissolved ; and that, as free and independent states, 
they have full power to levy war, conclude peace, contract 
alliances, establish commerce, and to do all other acts and 
things which independent states may of right do." 

91. Influence of the Declaration. — Of the influences 
exerted by the Declaration within the United States, those 
upon nationality and liberty are most interesting. To many 
of the patriots, independence declared meant independence 



Its principles 
and state- 
ments. 

Cf. Tyler, 
M. C. in 
X.A.Ji.,\6'i 
(1896), 1-16. 

Cf. Channing 
and Hart, 
Guide, ^ 137. 



Effect upon 
nationality. 



78 



The American Federal State 



Effect upon 
liberty. 

Channing, 
h 174- 



Disorder of 
the state 
governments 
(1775)- 
Hart, Union, 
§39. 

Channing, 

h 145- 

Fro thing- 
ham, Repub- 
lic, 491-496. 



achieved. Though, in their minds, union was still necessary 
because of common danger, the crisis seemed to have been 
passed. State and local self-government were no longer 
threatened by the imperial government, but rather by 
the Congress which was exercising powers that the state 
governments felt belonged to them. Their first care was 
therefore to restrict the power of Congress as much as pos- 
sible in order to strengthen the states. This was in fact the 
beginning of the great contest between nationality and states 
rights that lasted almost exactly one hundred years, but 
which ended in the states giving up all claim to sovereignty. 

The effect of the Declaration upon liberty is even more 
important, for the leaders of the revolutionary movement had 
based their claims upon the rights of man and had pro- 
claimed equality for all. In view of the social, religious, and 
political inequalities existing in practically all of the states, 
this, if it meant anything, was full of interesting possibilities. 
That it did mean something is proved by the efforts made 
by both the revolutionary leaders and the less fortunate 
classes to break down these barriers — efforts that produced 
during the next few years radical changes which affected 
every state in the Confederation. 

92. The First State Constitutions. — While the colonies 
were collectively declaring their independence of Great 
Britain, the colonial governments were being replaced by 
separate state governments. As the war spread, the royal 
governors and their assistants and the judges frequently 
found it wise to leave the country. This left only a por- 
tion of a government in several of the colonies, in some of 
which the assemblies began applying to Congress to know 
what they should do. In July, 1775, Massachusetts had 
been advised to use her old charter and to disregard the 
governor. In the following November, New Hampshire had 
been urged to call a convention representing the whole 
people in order to frame a state constitution, which it did 
gladly. But it was on May 15, 1776, that Congress took the 
great step forward which marked a new era in the history of 



The Revolution 79 

independence, union, and constitutional development. They Congres- 
recommended to each colony that it " adopt such a govern- J- °° ^/JJ^ "' 
ment as shall in the opinion of the representatives of the 15, 1776. 
people best conduce to the happiness and safety of their frothing, 
constituents in particular and of America in general." This ham, 496- 
suggestion was quickly followed by Virginia, which in conven- ^^• 
tion adopted a constitution embodying not only a plan for 
the state government, but also a bill of rights. Connecticut 
and Rhode Island merely continued their charters which 
were to all intents and purposes repubHcan constitutions, 
while most of the other states called conventions for the 
purpose, but only Massachusetts submitted the constitution 
framed by her convention to the people for ratification. 

The special significance of these constitutions lies in their Significance 

relation to the development of the written Constitution. For °^*^^. *""e" 
^ . constitutions. 

the first time in history there had been adopted a real writ- 
ten Constitution, which was ordained by the people, was 
alterable only by them, and which was above the govern- 
ment placing limitations upon it. At the same time there 
was being trained in these constitutional conventions men 
whose experience and knowledge was to prove of the highest 
value in the formation of a constitution of an even higher 
type, the best the world has ever seen — the United States 
Constitution of 1787. 

93. Characteristics of the State Constitutions. — These Influence of 

constitutions present certain marked characteristics, which ^^''^'^'^ ^°^" 
* ' emments. 

were the outgrowth either of preexisting institutions or of 

, , . J, . , Fiske, Crth- 

the movement of the times. That is, the new governments cai Period, 

were modelled after the old colonial governments, modified 65-69. 

by the ideas most prominent in 1776. For example, the Bancroft. 

idea of the rights of man found embodiment in "bills of ^y^i^^ ^i(^('^, 

, ^ , , V, 111-125. 

rights," first introduced by Virginia, but afterward accepted 

by almost all the states and still a prominent part of our Desire to 
state constitutions. The idea that liberty could be best pre- ^^erty^ 
served by completely separating the departments of govern- 
ment, left a lasting trace on these and on all later constitu- 
tions ; but the fact that the assembly had been the popular 



8o 



The American Federal State 



Predomi- 
nance of the 
legislature. 



Constitutions 
not demo- 
cratic. 



Articles of 
union pro- 
posed (1776). 

Channing, 
h 167. 

Story, Com- 
mentaries, 
\\ 221-228. 

Curtis, Cb«j/7 
Hist., I, 86- 
97- 



Articles of 
Confedera- 
tion accepted 
by Congress 

and adopted 
by all the 
states (178 1). 



branch of the government in colonial times led the consti- 
tutional conventions to give the legislatures abnormal powers, 
while the governors were shorn of almost every attribute of 
the executive office. The veto was everywhere abolished, 
and was only gradually reintroduced in a modified form. The 
judges were made dependent upon the legislature by method 
of appointment, removal and payment, and their usefulness 
was greatly impaired. Nevertheless the constitutions were 
not democratic. The Revolution had made them anti- 
monarchical, but it did not produce at once any change in 
the franchise, neither did it make popular ratification of the 
constitution necessary. 

94. Formation of the Confederation. — Although the pro- 
posal to frame articles of union was made on the same day 
as Lee's independence motion, June 12, 1776, it was 1781 
before the Confederation was formed. The fact is, however, 
significant that separation from Great Britain meant union of 
the colonies, both in the thought of the prominent statesmen 
and in the proposed action of Congress. A committee of 
one member from each state had been appointed in June, 
1776, and their report, made the 12th of July, had been 
secretly debated for weeks. Judging from this discussion, 
most of the delegates were willing to give Congress as much 
power as it was then exercising ; but when the subject was 
reconsidered the next year, the situation was radically difi"er- 
ent, as the states had become much more jealous of their 
rights, and demanded that they be fully accepted at the 
sacrifice of common interests. The states had their way, 
and a union much weaker than that suggested in 1776 was 
proposed in the Articles of Confederation, accepted by Con- 
gress November 15, 1777, and sent to the states for approval ; 
yet there is no reasonable doubt that the feelings of the 
people of the country regarding state and national rights 
were well expressed in the Articles. To all, union was a 
necessity, but to many it was nothing more than a necessary 
evil. Defective as the Articles were, it is really a matter of 
surprise that any union could have been formed when we 



TJie Revolution 8i 

consider the intense local spirit of the colonies, the extreme 
political narrowness that had marked so much of their con- 
duct, and the reaction against nationalism which had set in 
since 1776. As it was, ratification came very slowly. By 
July, 1778, ten states had agreed to the Articles, and Con- 
gress urged the others to give their consent. jMay, 1779, 
saw only Maryland holding back, and she refused until her 
powerful neighbors should cede their claims to the Western 
lands, which were dangerous to her own safety. At last when 
action by New York and Virginia seemed to insure control 
of the lands by the Congress for the common benefit, Mary- 
land gave her consent. Thus on March i, 1781, after five 
weary years of effort, was union accomplished. 

95. Character of the Articles of Confederation. — What Degree of 
was the real character of this Confederation ? It called ^!^*^ sover- 
itself a league of states which retained their " sovereignty, 
freedom, and independence, and every power, jurisdiction, „ ^^^%, 
and right which is not by this Confederation expressly dele- 
gated to the United States in Congress assembled." This cai Period' 
idea that sovereignt}' resided in the separate states and not 93-101- 
in the nation is borne out by the provision that each state, Curx\s,Co>ist'i 
whether large or small, should have one vote in Congress, ^^^•< i- 98- 
and by the requirement that the Articles could be amended °^" 
only by unanimous consent of the state legislatures. There Story, Com- 

. . ' 1 . « menfaries, 

were, however, restrictions placed upon the states which k^ 229-242. 

seemed to indicate that they were not sovereign, for no 

state was permitted to send ambassadors, to make treaties 

with other states or foreign powers, to lay duties that \'iolated 

any treaty of the United States, to keep an army, or make 

war. 

The central government under the Confederation con- Powers of 
sisted of nothing more than a Congress of delegates elected Congress. 
by the states, with important diplomatic, but unimportant 
legislative, powers, and no executive in theory or in prac- 
tice. Its judicial powers were limited to jurisdiction of 
appealed cases referring to interstate disputes. Its legis- 
lative powers included the right to issue money, to make 

G 



82 



The American Federal State 



Lack of 
sovereign 
power in the 
United 
States. 

Federalist, 
Nos. XV, 
XVI. 

Story, Com- 
mentaries, 
\\ 248-254, 
265-268. 



Failure 
through lack 
of revenue. 

Curtis, 
Const'l Hist., 
I, II5-119. 



requisitions on the states for sufficient sums to pay the 
expenses of the government and men enough to carry on a 
war, to build a navy, and finally to declare war and make 
peace ; but for all matters of any considerable importance, 
the votes of nine states were absolutely necessary. As has 
been well said, the Articles seemed to have been formed 
for no other purpose than to accoraphsh a minimum of 
result with a maximum of effort. But in one respect the 
Confederation marks a great advance upon any preexisting 
union, for it recognized the existence of interstate citizen- 
ship, and guaranteed to the citizen of one state residing in 
another all the rights of citizens of the latter state. 

96. Defects of the Confederation. — The radical defect of 
the Confederation was the lack of sovereign power in the 
United States. This showed itself in many ways. The 
central government could not deal with its citizens except 
through the states, that is, it acted on the states and not 
on individuals. This was the reason that Congress had 
the power to declare anything, but to do nothing. In the 
execution of the laws, in the obtaining of revenue, in raising 
an army, in amending the Articles, the state governments 
could interfere with the action of the Congress, and in some 
cases a single state could defeat an important measure or a 
proposed remedy. As it was impossible to think of coerc- 

•ing such a state by military force, the Congress gradually 
lost what power it nominally possessed. It became in time 
almost impossible to obtain a quorum in Congress, as the 
states either neglected to choose delegates, or the delegates 
did not think it worth while to attend. Congress had lost 
not only its power and its influence, but its self-respect 
as well. 

97. The Failure of the Confederation. — The failure of the 
Confederation was due, to a certain extent, to all of these 
defects, but especially to the lack of power to control com- 
merce (§99) and the inabiUty to obtain revenue. While 
the war lasted, the United States was fortunate enough to 
borrow sums from France and Holland, and was also able 



The Revolution 



83 



to raise limited amounts in the states ; but, as it was not 
always able to pay the interest on these loans, its credit 
became rapidly poorer after 1783. Paper money had 
already been tried without success, so that the only means 
left Congress, in order to pay its expenses, was to apportion 
among the states the amounts each was to pay toward the 
support of Congress. As there was no way of forcing the 
states to pay these requisitions, and as the state finances 
were in themselves quite a burden, Congress waited in vain 
for even a small proportion of what it had requested. Of 
the fifteen millions asked from the states between 1781 and 
1786, less than two and a half millions were paid in, whereas 
but one million of the ten for which Congress had petitioned 
between 1784 and 1788 found its way into the federal 
treasury. 

Two attempts were made to alter the Articles of Con- 
federation, so as to give the central government power to 
regulate foreign commerce and collect for itself duties upon 
imports. In each case the amendment was defeated because 
just one state objected. The recommendation of February 
3, 1 781, was to the effect that Congress should have power 
to collect a five per cent ad valorem duty, to be used 
exclusively for the interest or principal of the public debt. 
To this all consented except little Rhode Island. A second 
proposition, April 30, 1784, favored a duty of five or more per 
cent, for twenty-five years, upon certain enumerated articles, 
with power to regulate commerce, the customs to be col- 
lected by federal officials. This amendment was defeated 
by New York, which insisted upon collecting the duties at 
its own ports and then paying Congress in depreciated paper 
currency. These experiences seemed to prove that the 
Articles were to remain the fundamental law of the United 
States until forcibly replaced by a better constitution. 

98. Development of National Conditions. — Fortunately, 
the degree of nationaUty existing in any country is not 
always measured by the strength of her national govern- 
ment. As the government became weaker, the common 



Failure be- 
cause of ina- 
bility to 
amend the 
Articles. 

Curtis, I, 
157-167. 



Mutual in- 
terests of the 
people grow 
more numer- 
ous. 



84 



The American Federal State 



Uniform 
laws needed 
for foreign 
and inter- 
state trade. 

Curtis, 
Const'l Hist., 
I. 186-195. 



Land ces- 
sions of the 
states. 

Channing, 
\^ 170-172. 

Fiske, Criti- 
cal Period, 
187-196. 



interests of the people became more numerous. During 
ilhe war it was a sense of common danger that held them 
together; but, as war conditions disappeared, and they 
returned to ordinary business life, the states found that 
they had more reason for being together than formerly. 
We may consider briefly three things : commerce and the 
public lands and religious institutions. 

99. Feed of National Control of Commerce. — As all for- 
eign affairs were of necessity left with Congress, the regula- 
tions for commerce with other nations would be uniform 
throughout the country. Every part of the United States 
felt that it was benefited if this foreign commerce was 
increased, and that they were correspondingly injured by 
the commercial discriminations of Europe, and by the fail- 
ure to make satisfactory commercial treaties. In interstate 
commerce they came to realize the even greater need of 
uniform laws. Free trade between the states had not been 
provided by the Articles, consequently each state levied 
what duties it pleased on goods brought in from its neigh- 
bors. As the interstate trade was large and growing, and 
as each state framed its system of duties for its own inter- 
ests, the result was not only to greatly injure trade, but to 
produce ill feeling that led to retaliatory acts on the part 
of the other states. Consequently, the need of national 
control was so evident that, unless it could be obtained, a 
state of affairs bordering on warfare was inevitable. 

100. The Nationalizing Influences of the Public Domain 

Much the same kind of national control was demanded for 
the great domain in the West that had been ceded by Great 
Britain in the treaty of peace (1783, § 623). Several 
states had claims to this land based on charters, conquests, 
or Indian treaties, and some of these claims conflicted. 
Largely owing to the attitude of Maryland, which realized 
the danger to herself from the further expansion of states 
already large, these claims were practically or wholly 
renounced, and the control of the land northwest of the 
Ohio was given to the Congress. This generous action 



The Revolution 85 

removed the danger of interstate strife that was present in 
commercial matters, and at the same time influenced the- 
development of nationality in a very positive way, because 
Congress exercised over this territory without question very 
great powers for which it had no constitutional authority. 

The Ordinance of 1787, for the government of the North- Ordinance 
west Territory, was what our German friends would call a ° ^7 7- 
balvibrechende idee — a path-breaking idea. While the Channing, 
territory at first was to be governed by officials appointed ^ 
by Congress,- and so was a kind of colony to the United Fiske, Cnu- 
States, provision was made for the formation of five states 15)6-207! 
as soon as the population of any district reached sixty 

,,,.., Macdonald, 

thousand. These states were to be republican in character, Documents, 
and should be admitted to the Union on a par with all 21-29. 
other states, and should never be separated from the United Johnston, in 
States. Congress showed itself in sympathy with the re- Laior, iii, 
forming spirit of the times when it declared that there 
should be perfect religious liberty, that slavery should never 
exist in the territory, that education should be at public 
expense, and that estates should be shared equally by 
children of both sexes. 

1 01. National Religious Organizations. — Before the Rev- National 
olutionary War almost every colony had an established ^burches 
church which received support from the colony : but while 

each colony had church mstitutions these never crossed cai Period, 
colonial lines. In other words, although there might be 83-87. 
members of the Church of England in every colony, the 
church organizations were unconnected. After the war, the 
national sentiment of the people led to the formation of 
national churches. Out of the old Churches of England 
grew the American Episcopal Church. In 1 784 the Metho- 
dists held their first national gathering, while in 1788 the 
Presbyterian Church of America was organized. 

102. Religious Liberty. — At the same time changes Abolition of 
were occurring in the structure of society. None of the restrictions 

° •' _ and disquali- 

inequalities of the colonial period wholly withstood the fications. 
undermining influence of the Revolution. In practically all 



86 



The American Federal State 



Fiske, Criti- 
cal Period, 
76-82. 



Many 

inequalities 

removed. 

Fiske, Criti- 
cal Period, 
70-76. 



Property still 
the basis 
of the 
franchise. 

Thorpe, 
Const' I Hist., 
1, 191-210. 



of the state constitutions adopted during the war religious 
qualifications were required of public officials, and, in some 
cases, of voters, while in many cases clergymen were not 
allowed to hold office (Appendix G, Table I). These re- 
strictions existed especially in the South and in New Eng- 
land until swept away by the democratic movement of 
this century, but many of them were abolished during the 
Confederation. In this great movement Jefferson and Madi- 
son took the lead by securing the disestablishment of the 
Virginia church and the abohtion of church qualifications 
as well. The influence of the example set by the Ordinance 
of 1787 in this as in other reforms was of the highest 
importance. 

103. Class Distinctions. — The most noticeable changes 
in the relations of classes is that dealing with the negro 
slaves, but others were occurring which lightened the bur- 
dens of indented servants and did away with many of the 
inequalities of class legislation. The general tendency was 
to aboHsh primogeniture where that existed and substitute 
for it the equal partition of the property of the deceased. 
In the attempt to abolish the slave trade the Middle and 
the Southern states led the way. Emancipation had been 
practically completed in New England before 1787 and was 
making good progress in the Middle states, but gained no 
foothold south of Virginia. 

104. Political Qualifications, — Considering the statement 
that "all men are created equal," it took a long time for people 
of the eighteenth century to realize that man as man had any 
right to a part in the government. While the requirements 
of colonial times were essentially modified, property re 
mained the basis of the franchise until the close of the cen- 
tury. Vermont, New Hampshire, and later Kentucky did 
something toward making suffrage universal ; but in the 
older states property quahfications were the rule, officials 
being required to have a greater amount than voters. Even 
the liberal ordinance for the Northwest Territory required a 
freehold of fifty acres before one could cast a ballot. 



The Revolution 8y 

105. Condition of United States in 1787. — By 1 787, then, Social prog- 
much had been done, yet more remained to be done. The ^^^^ "°* 
changes produced by the Revolution had not been radical 1787. 
either in their nature or in the method by which they were 
produced. The spirit of the Revolution was a leaven that 
had permeated society, not a charge of dynamite destroy- 
ing existing institutions. The old system was undergoing a 
change ; we cannot say it had been changed. There was 
still an absence of the nineteenth-century humanitarian 
spirit. 

In the affairs of national government we had reached the Weakness 

lowest ebb. We did not command respect as a nation : °^ ^'^^ 

, u 1 . T , ,. national 

Other powers would make no treaties with us; our credit government. 

was gone ; our commerce flourished in spite of the condi- 
tions, rather than because of them. To the general internal 
difficulties had been added a period of financial depression 
productive of cheap paper-money and a serious revolt in 
Massachusetts, called Shays's Rebellion. Thinking men be- 
lieved that many of these evils were due to the weakness of \ 
the central government, and had already begun to take steps 
to have that government reorganized. 



QUESTIONS AND REFERENCES 
General (§§ 80-82) 

1. "What is a revolution? Show the difference between a revolu- 
tion and a revolutionary war; between a social and a political revo- 
lution; a financial and a military one. Give examples of each in 
history. (Cf. § 36.) 

2. Is it true that " a revolution is a successful rebellion " ? 

3. Who began the American Revolution? To what extent was the 
Revolution due to social, to political, to economic causes? 

4. What is meant by nationality? by the spirit of nationality? 
Can nationality exist without national pohtical institutions? without 
national religious institutions? Can it continue without these? 

5. What is the difference between localism and sectionalism? 
Which is more opposed to nationality? Under what conditions might 
each help to develop nationality? under what to hinder it? 



88 TJie American Federal State 

6. What was the influence of the Revolution upon English poli- 
tics? Did it produce changes that resulted in political freedom? 

7. Trace, if possible, the influence of our Revolution upon that of 
France. Compare them as to causes, character, relation to the rest 
of the world, and results, noting principal similarities and differences. 
Account for these. 

England in 1760 

a. On the character and policy of George III compare Fiske, 
Green, Trevelyan, Lecky, Walgrave in Hart's Contemporaries, II. 

b. For the character and composition of Parliament see Fiske, I, 
32-35; Green, 764-766; Lecky, 185-188. 

c. The difference between " virtual " and " territorial " representa- 
tion is given in Channing, Studenfs History, §§ 122-123. 

1. Describe the condition of English politics under George II. In 
what respects was the English poHcy of George III different from that 
of George II? in what the colonial policy? 

2. From what kinds of districts were the members of the House of 
Commons elected? What influence did the Lords have over these 
elections? To what extent was the House of Commons controlled 
through bribery? 

3. What difference was there between the English and the Ameri- 
can idea of representation in 1760? 

The Beginnings of Conflict (§§ 83-85) 

a. On the colonies in 1760, see Montgomery, Studenfs American 
History, 143-162; Chaiming, United States (i 765-1 865), chap. I; 
Thwaites, Colonies, chaps. V, VIII, X; Lodge, Ejtglisk Colonies ; 
Channing and Hart, Guide, § 133. 

1. What claim had the colonies to the exclusive right of taxation 
based upon the charters? upon the expressed consent of the British 
government? upon the implied consent? upon the results of the 
contests between the governors and the assembhes ? 

2. Is taxation without representation always tyranny? If not 
always, when is it, and when not? Have we any instances now of 
taxation without representation? 

3. What provisions of the Townshend Acts violated American 
principles of government, and in what ways? 

Intercolonial Union (§§ 86-88) 

I. Did the spirit of union precede organized union? Was the 
spirit of union ever fully represented by the character of the organiza- 



The Revolutioji 89 

tion? Which was of greater value to unity, a congress or organizations 
like the committees of correspondence ? \Miy? 

2. Compare the Congresses of 1754, 1765, and 1774, as to reasons 
for which called, number of colonies represented, method of choosing 
delegates, degree of unity shown, work of the Congress, and influence 
on permanent union. Make table. 

3. Compare the Declarations of Rights (1765 and 1774) and the 
Declaration of Independence, showing basis of claims, deductions from 
these premises, and the growth of the idea of complete self-government. 

Union and Independence during the War (§§ 89-93) 

a. On first state constitutions consult Fisher, Evolution of Consti- 
tution, 70-89; Schouler, Constitutional Studies, 29-69; Thorpe, Con- 
stitutional History, \, 60-100; Morey in y4. ^. ^., IV, 201-232; Poore's 
Charters and Constitutions ; Channing and Hart, Guide, § 143; W. C. 
Webster in A. A. A., IX (1897), 380-420. 

1. W^as independence inevitable? In what section was opposition 
to the Declaration most prominent, and why? What effect did the 
Declaration have on parties in the United States? on our standing 
abroad ? 

2. Make a study of the Declaration. Do you find any ground for 
the misquotation that "all men are created free and equal"? What 
do you think of the bases of the argument in paragraph 2 ? of the 
argument itself? 

3. Of the reasons assigned for separation, which ones deal with acts 
illegal in English law? which ones were opposed to colonial practice? 

4. Was democracy, as we understand it, the natural consequence 
of the Declaration? Trace the influence of the Declaration in equaliz- 
ing conditions since 1776. 

5. Considering the action of Congress in the formation of state 
governments, could the states justly claim to have been sovereign at 
any time ? 

6. Show how the revolutionary state constitutions illustrate the 
truth that lies in the natural theory of the origin of the State. In the 
contract theory (§§ 6, 7). 

The Confederation (§§ 94-105) 

1. Compare the Articles with Franklin's plans of union in 1754 and 
1775 and the second Continental Congress as to form of government, 
representation of states, and powers of Congress. 

2. Is it true that the Confederation really represented a higher 
form of union than Congress in 1776? Give your reasons in full. 



90 The American Federal State 

3. Enumerate specific defects of the Confederation. 

4. What influence did separation from Great Eritain after 1776 
have upon the development of national conditions? What part has 
commerce played in the centralization of states and governments in 
history? 

5. To what extent did the United States allow its public domain to 
be self-governing? In what ways has our national territory been held 
in a colonial relation to the central government? (see § 628). 

6. In what ways did the Ordinance of 1787 reflect the reforming 
movement of the times, and how did its provisions in turn influence 
the West? the East? 

7. For what reason did the new laws of inheritance favor the de- 
velopment of democracy? 



CHAPTER V 

THE CONSTITUTION (i 787-1 789) 
General References 

Hart, Formation of the Union, 120-135. 

Channing, Studeiifs History, 255-275. 

Walker, Making of the Nation, 19-62. 

Hinsdale, American Government, 87-143. An excellent summary. 

Johnston, in Lalor's Cyclopedia under Constitution, Compromises, State 
Sovereignty, etc. 

Fiske, Critical Period, 220-344. 

Curtis, Constitutional History, I, 235-697. 

Bancroft, History of the United States, \1, 195-474. 

Madison, Debates in the Federal Convention. By far the best contem- 
porary account. (Volume V of Elliott's Debates.') 

Hamilton, Madison, and Jay. The Federalist. The best contemporary 
explanation of the completed constitution. 

Elliott, Debates. 5 volumes. Gives journal of the convention and 
speeches on ratification in the states. 

Meigs, Growth of t/ie Constitution. Traces the development of each 
section to its final form. 

Jamieson, etal. Essays in the Constitutional History of the United States. 
For further bibliographies consult : 

Channing and Hart, Guide, §§ 154-157. 

Ford, in Bancroft, History of the Constitution, II. 

Foster, References on the Constitution. 

106. Feeling regarding a Constitutional Convention. — Favored by a 
The need of a constitutional convention to remedy the 
Articles of Confederation had been recognized before those 

• I • • .1 n -n • J Fiske, Criti- 

articles went into operation. As early as 1780 Fame and cat Period, 

Hamilton had suggested such a convention, and in 1785 214-222. 

Bowdoin, governor of Massachusetts, definitely instructed Curtis,Co»rf7 

her representatives in Congress to have one called. The ^"^■' ^' 221- 
serious defects of the Confederation had been emphasized 

91 



few before 
1787. 



232. 



92 



TJie American Federal State 



The 

Annapolis 

conference. 

Hinsdale, 
\\ 166-168. 

Curtis, I, 
232-236. 



To revise the 
Articles of 
Confedera- 
tion. 

Curtis, I, 

237-245. 



by Peletiah and Noah Webster in 1780, and were realized 
by all the leading men of the country ; but the desire for a 
convention to remedy these defects were not widespread. 
It was necessary for a few earnest spirits to take advantage 
of conditions by summoning a convention representing all 
the states. The favorable opportunity arrived when Madi- 
son persuaded the Virginia legislature to invite all the other 
states to attend the Annapolis conference held by Maryland 
and Virginia for the purpose of regulating commercial inter- 
ests. The subject proposed for discussion was the condition 
of commerce and trade throughout the Union. As dele- 
gates from but five states were present, Hamilton urged 
an adjournment in order that all the states might be repre- 
sented in a larger convention at Philadelphia the next year. 
The Annapolis delegates then accepted the draft of a cir- 
cular letter to the states for a convention " to revise such 
further provisions as shall appear to them necessary to render 
the constitution of the federal government adequate to the 
exigencies of the Union, and to report to Congress such 
an act as, when agreed to by them, and confirmed by the 
legislatures of every state, would effectually provide for the 
same." 

107. The Purpose of the Convention. — Congress resented 
the action of the Annapolis Convention in calling a consti- 
tutional convention, and refused to give its consent to the 
Philadelphia meeting, but in February, 1787, after seven 
states had appointed delegates, and New York had taken 
away the last hope of regular amendment of the Articles by 
refusing to vote the impost, the absolute need of such an 
assembly became apparent, and Congress gave its indorse- 
ment by calling a convention of its own to meet at Phila- 
delphia at the same time. This was summoned " for the 
sole and express purpose of revising the Articles of Confed- 
eration and reporting to Congress and the several state legis- 
latures such alterations and provisions, therein, as shall, 
when agreed to by Congress and confirmed by the States, 
render the Federal Constitution adequate to the exigencies 



from the dif- 
ferent states. 



The Constitution 93 

of government and the preservation of the Union." As 
each state instructed its delegates in substantially the same 
terms, the convention was technically limited to revising the 
Articles of Confederation. If it failed to do this, it was left 
one of two alternatives, — to form a new and stronger con- 
federation, or a still stronger government on a different basis. 

108. The Members. — The personnel oi the convention was of a Prominent 
very high order. This was unquestionably the ablest body of men delegates 
that had ever sat to discuss the political affairs of America. Strangely 
and yet naturally enough the most intense leaders of the pre-revolu- 
tionary period were not there. Some, like Henry and Lee, had refused Walker, 
to serve as delegates; while others, like Jefferson, were occupied with Nation, 22 
foreign affairs. On the whole, the absences cannot be regretted, for ^"' 
most of these men were little suited to the work of making a Consti- 
tution for a nation. But the members of the convention were by no 
means unknown men, Franklin, the ablest statesman of the previous 
generation, though now in his decline, rendered invaluable aid in pre- 
serving a spirit of harmony, and with the noble-minded Washington 
did much to give the Convention prestige with the people. Sherman, 
of Connecticut, had been on the committee that wrote the Declaration 
of Independence, and like his colleague, Ellsworth, was a man of 
excellent judgment. Massachusetts sent four men of prominence. 
Hamilton, of New York, was in many ways the ablest man present, 
but contributed little to the details of the final plan because his ideas 
of central government were out of sympathy with any that could be used, 
and his vote was cancelled by those of two very narrow-minded men. 
From Virginia and Pennsylvania came the men whose influence was 
from first to last the greatest. The scholarly Madison, with his broad 
knowledge of historical institutions and his deep insight into the evils 
of the time, was ably supported by Wilson, the clear-thinking Scotch- 
man, who possessed ideas that remind us of the America of to-day 
more than of America in 1787. From Pennsylvania came also the 
quick-tempered but able Gouverneur Morris, to whom was assigned 
the task of making the final draft of Constitution, while the South 
sent Rutledge and the two Pinckneys. 

109. The Question of Nationalism. — The Convention was Organization 
called to order at Philadelphia on the 25th of May, 1787, 
with delegates from nine states present. It closed its ses- 
sions on the 17th of September, every state but Rhode 
Island having been represented during most of that time. 



and sessions. 



94 



The American Federal State 



The Virginia 
plan. 

Elliott, 
Debates, V, 
127-128. 

Fiske, Criti- 
cal Period, 
236-242. 



Of the sixty-two delegates appointed, only fifty-five reported 
and but thirty-nine signed the final draft. 

The first business was the selection of a chairman, George 
Washington, and the making of rules, of which the two most 
important were that sessions should be secret and that each 
state should have one vote. On the fifth day Randolph, of 
Virginia, offered a plan drawn up by Madison and approved 
by the delegates from that state. It is popularly called the 
Virginia plan. As stated in the first article, its object was 
to correct and enlarge the Articles of Confederation. For 
this purpose there was to be national government, composed 
of a legislature, executive, and judiciary. The legislature 
was bicameral, the lower house being elected by the people, 
and the upper house chosen by the lower out of persons 
nominated by the state legislatures. This national legisla- 
ture was to have not only the legislative rights of the exist- 
ing Congress, but " moreover to legislate in all cases to 
which the separate states are incompetent, or in which the 
harmony of the Union may be interrupted by the exercise 
of individual legislation, to negative all laws passed by the 
several states contravening, in the opinion of the National 
Legislature, the Articles of Union, or any treaty subsisting 
under the authority of the Union, and to call forth the force 
of the Union against any member of the Union failing to do 
its duty under the articles thereof." There was to be a 
competent executive elected by the national legislature, 
which was not reeligible, and which, with a certain number 
of judges, should have a suspensory veto upon laws of the 
national and state legislatures. A judiciary was to be estab- 
lished with jurisdiction in cases of interstate dispute, piracy, 
impeachment, etc. Provision was made for the admission 
of new states, for guaranteeing representative government 
to each state, and for all state officers to take an oath to 
support the Articles of Union. The Constitution was to be 
ratified by conventions in the several states, and to be 
amended without the necessary assent of the national legis- 
lature. 



The Constitution 95 

We can see at a glance how different this plan was from Comparison 



with the 
Articles of 



the Articles in use. Although not instituting what we should 
call a really popular government, it certainly was national. Confedera- 
The negative upon state laws and the legal use of force to *^°°- 
coerce a state seem indeed to threaten local self-govern- 
ment ; but these features were dropped at once for lack of 
support. It suggested what is on the whole a reasonable 
scheme — one in fact that with modifications we have put 
into practice. 

no. The Contest over Nationalism. — The next day, May Virginia plan 

xo, in the committee of the whole, it was moved that a * °P*^„ ^° . 
•J ' ' committee of 

Confederation based on treaties between sovereignties was the whole, 
insufficient, and moved further " that a National government Johnston, in 
ought to be established with a supreme Legislative, Execu- Laior, 1,547- 
tive and Judiciary." The second part of the motion was ^ ' 
adopted by a vote of six to one. This was certainly not Fiske, CHt- 
equivocal, though later discussion showed that some mem- 242-244. ' 
bers did not fully understand what was meant by the word 
national. During the next two weeks the debate (still in 
committee of the whole) was limited to the different reso- 
lutions of the Virginia plan, and at the end of that time the 
Virginia plan was accepted by the committee with some 
alterations, such as dropping the clauses referring to the 
negative on state laws, to coercion, and the one providing 
for a council of revision, and modifying certain of the details. 
This called forth fi^om the conservatives and delegates from 
the small states a scheme known as the New Jersey Plan. The New 
It favored amendment of the Articles of Confederation so J^'^^y ^ ^°* 
as to create an executive elected by Congress, and a judi- Fiske, 245. 
ciary, with appellate jurisdiction, appointed by the execu- 
tive. Congress was given power to levy duties and internal 
taxes, and its legislation, together with the treaties, was made 
the supreme law of the land. Provision was made for the 
admission of new states, and for a uniform rule of naturali- 
zation. 

With this greatly improved scheme of confederation before 
it, issue between nationalism and particularism was fairly 



96 



The American Federal State 



Virginia re- 
ported by 
committee of 
the whole. 

Fiske, 246- 
250. 



Necessity of 
compromise. 



Representa- 
tion con- 
sidered in 
committee 
of the whole. 



Connecticut 
compromise. 

Fiske, 250- 
253- 



joined in the convention. On June 19 the members, still 
in committee of the whole, voted to rise and report the 
Virginia plan. The vote stood seven to three — in some 
respects a division between large and small states. At all 
events, it was a decisive victory for the national party. 
But the same day, in order to avoid bad feeling, the word 
national ■ssz.% dropped, and the legislature was hereafter called 
Congress. 

Later on the plan was modified by introducing the federal 
principle in the composition of the Senate, and still later 
other federal features were embodied. It was absolutely 
necessary that this should be done, for although the states 
favoring nationalism had been in the majority and had carried 
their point, and could probably have won in the contest 
over representation in the Senate, the victories would have 
been dearly bought, since, even had the Convention failed 
to break up, which is unlikely, the Constitution would never 
have been adopted by the people. 

HI. The Compromise over Representation in Congress. — 
It had been decided the first week the convention was in 
session that the members of the lower house should be elected 
by the people of the states, and later it was agreed that their 
number should be in proportion to the free population and 
three-fifths of all others. At this time a motion to have 
equal representation in the Senate was lost by a vote of five 
to six, and the large states then adopted the same rule for 
the Senate as for the House of Representatives. 

As this was done in the committee of the whole, nothing 
was said. It was an entirely different matter, however, when 
the subject was taken up in the convention, June 28. They 
decided that the states should not be equally represented in 
the lower house, but could do nothing more, so referred the 
matter to a committee. The committee favored equal repre- 
sentation in the Senate, giving the House power to originate 
all money bills. This was not at all satisfactory to the large 
states, for they considered the financial right of Httle value. 
Day after day of bitter debate was passed without solving 



The Constitution 97 

the difficulty. The small states were determined to win or 
withdraw, and the large states finally accepted defeat as 
the lesser evil. It was then decided to allow the states to 
be represented in the House according to population, rating 
negroes at three-fifths of their number, and to give each 
state two members, each having a vote, in the Senate. This 
concession won for the Constitution both during the conven- 
tion and afterward the complete support of the small states, 
and left the chief issue of the Convention the question of 
slavery. 

112. Other Questions and Compromises. — The conduct of Theadjust- 
the small states had been directed by the feehng that " self- "^"^* °^ .^''^'^ 

° and sectional 

preservation is the first law of nature," and there is no doubt interests. 
that they beheved consolidation of the Union to be a real 
danger to them. In later discussions, the chief difficulties 
lay in devising a scheme that would promote as many sec- 
tional interests as possible. As the advantage of one section 
was often thought to be the disadvantage of another, and as 
each section threatened to withdraw unless its demands were 
recognized, the only possible union lay through further 
compromise. 

In addition were the numerous details which involved no 
great principle, but whose proper adjustment meant so much 
to the administrative success or failure of the new Con- 
stitution. 

113. The Three-fifths Compromise. — It had been decided The count- 
early in the convention that when representatives in the '"§°' 

•' ^ negroes. 

lower house were apportioned among the states or when 
direct taxes were levied upon them, the number of members 262^' 
or the amount of the tax should be in proportion to the 
population. A difficulty at once arose as to the counting of 
negroes. The South wished slaves counted when represen- 
tatives were apportioned, while the North protested. The 
South objected to counting the negroes, whom they now said 
were property, when taxes were being assessed, while the 
North thought they should be counted. It seemed then 
about an even thing when the convention adopted the rule 



98 



The American Federal State 



Report of the 
committee 
on detail. 

Elliott, De- 
bates, V, 
376-381. 



Compromise 
over slave 
trade and 
navigation. 

Fiske, 262- 
267. 



Method of 

electing 

Senators. 

Meigs, 
Growth of 
Const., 68-80. 



in use for taxes under the Confederation by taking all of the 
free population and three-fifths of the negro slaves as the 
basis in both cases, but it does not require a great knowledge 
of our later history to know which side had the best of the 
compromise. 

114. The Last Great Compromise — On the 26th of July 
the Convention completed the discussion of the Virginia plan 
and placed its resolutions in the hands of a committee on 
detail for further elaboration. Several days later the com- 
mittee reported a plan very similar in form and content to 
our present Constitution proper. Among the notable differ- 
ences were the failure to give the courts jurisdiction over 
cases arising under the treaties and the Constitution, the 
power granted the Senate to decide certain controversies 
between States and two powers of Congress. In this draft 
Congress was not permitted to prohibit the slave trade, and 
navigation acts could be passed only by a two-thirds vote. 
The last two were clearly dictated by Southern interests and 
met with considerable opposition. They were at once given 
to a new committee and the report favored prohibition of the 
slave trade after 1800, with a tax on slaves imported, and 
struck out the clause requiring a two-thirds vote for naviga- 
tion laws. This came near precipitating a conflict between 
the Southern and New England interests, which were dia- 
metrically opposed to each other on the two questions. 
They finally agreed to have navigation acts passed by a 
majority vote, to prohibit the slave trade after 1800 (later 
changed to 1808), and to limit the tax on slaves to ten 
dollars per head. The power of the Senate over contro- 
versies had already been struck out, and the jurisdiction of 
the courts was enlarged soon after. 

115. Important Details. — On a number of subjects beside 
those mentioned, the convention was long in doubt. They 
could not at once make up their minds as to the best method 
of choosing Senators. Some wanted election by the people, 
others election from special districts, a third class wished to 
leave the choice with the lower house, while a fourth favored 



The Constitution 99 

the state legislatures. As the last were the most numerous, 
their views finally prevailed. 

Much more trouble was encountered with the Presidency. Term and 
Most of the members favored a single person because the l^'^p"" 
committees of the Confederation had been so unsatisfactory; ident. 
but in regard to election, reehgibility, and length of term, the stanwood 
convention did not know its own mind. They first voted Hist, of 
in favor of a term of seven years mthout reelection, then ^ ^"^ ^' 
changed to six, went back to seven, and during the closing 
weeks of the sessions decided upon four, with reeligibilitj'. united 
The election of the President presented a much more diffi- states, vi, 
cult problem. They were afraid to make him subordinate ^^ ^^" 
to Congress by leaving the choice to that body, did not Fiske, 277- 
dare intrust election to the people, and were unwilling 
to leave it to the state legislatures. After agreeing to two 
of these plans at different times, they finally hit upon 
indirect election through competent electors chosen by the 
States. 

116. The Method of Amendment. — The two most impor- Amoreiib- 
tant things with regard to any constitution are how it is made ^^f^ "^^ 
and how it may be changed. After it has been adopted, the 
method of amendment is of the greatest consequence, be- ava-'W?' ' ' 
cause that determines whether the constitution shall be 
altered to meet new pohtical conditions, or whether it shall 
be abolished by revolution. The failure of the Confedera- 
tion was in no small measure due to the requirement of 
unanimous consent to any change. The opposition in the 
convention to such a rule was practically unanimous, but the 
framing of a proper method was not given the attention it 
deserved. Debate was confined principally to the question 
whether the states should have any initiative in making 
alterations. It was finally agreed that amendments might 
be proposed by two-thirds of each house of Congress or by 
a convention called on the application of two-thirds of the 
states, and that for ratification the consent of three-fourths 
of the state legislatures or conventions was necessary. Only 
one permanent clause was to be free from alteration by this 

L.ofC. 



100 The Ainerica?t Federal State 

means : no state should be deprived of its equal represen- 
tation in the Senate without its consent. 
Lack of care 'phg comparative lack of consideration with which this 
not in dis- Subject was treated was paralleled in the case of several others, 
pute. which in themselves deserved the most careful attention. A 

careful reading of the proceedings of the convention cannot 
fail to leave the impression that too much attention was 
given to making a constitution that would be adopted, and 
not enough to perfecting those parts upon which opinions 
differed very little. Yet when we consider the seriousness 
of the situation in its many trying aspects, the lack of experi- 
ence in framing national constitutions, we are just as much 
impressed with the moral earnestness, the lofty patriotism, 
and the rare poUtical skill with which "the Fathers " sought 
to give us the best government they were able to devise. 
Objections to 117. Conditions affecting Ratification. — The Constitution 

the Constitu- ^^g ^q „q jj^^q effect as soon as nine states had ratified 
tion. ° 

through conventions of the people, but there were great 

jtc^!!!t^„^o difficulties to be overcome before the states would agree to 

the new plan. Bad as the government under the Confed- 



§§ 206-208. 



mentaries, '] cration had been, popular prejudice was probably greater 
§^ 293-305. toward a strong than toward an inefficient government. The 
new instrument seemed to invade the sphere of the states, 
\ to reestablish tyranny. It provided for no bill of the rights 
of the people, it made Congress absolute in the control of 
certain affairs, it left the Supreme Court and not the states 
to decide whether Congress had overstepped its bounds. 
It created a military dictator with almost unlimited power. 
Conditions On the Other hand, many things were favorable to the Con- 

stitution. The best classes of the citizens were disgusted 
with the Confederation, and these classes included most of 
Consc} Hist ^^ poHtical leaders. The Federalists or friends of the 
623-640. Constitution were much better organized than their oppo- 

' nents. They possessed greater knowledge and skill, and 
were able to show the people that their fears were based on 
prejudice. This is nowhere better exemplified than in the 
able papers written by Hamilton, Madison, and Jay, pub- 



favorable to 

ratification 



The Constitution lOl 

lished under the title of Tlie Federalist. Nevertheless it is 
true that the Constitution was drawn " by grinding necessity 
from a reluctant people." 

ii8. The First States. — It was the small states that led Five states 
the way in ratification. Delaware came first on the 6th of '^^''^g ^^- 

■w^ 1 r. • 1 • T-. 1 • cember and 

December, 1787, with a unanimous vote. Pennsylvania won January. 
after a hard struggle in which the superior organization of 

°° t- & Fiske, 306- 

the Federalists and the logic of Wilson were the determining 317. 
factors. New Jersey, Georgia, and Connecticut fell into line 
without much opposition; but in North Carolina, and later 
in New Hampshire, the conventions adjourned without action. 

As ]\Iassachusetts was the stronghold of particularism, the Massachu- 
Anti-federalists made a serious attempt to keep the state 
from ratifying. The three great objections brought forward W^^l^^r, 
were that the liberties of the people were threatened (i) by ^7. 
the length of the terms of representatives especially, (2) by p. , 
the absence of a bill of rights, and (3) by the general con- 331. 
sohdation of power in the United States government. The 
convention would not vote for ratification until it was under- 
stood that a bill of rights should be added, and then the 
majority was only nineteen out of a total of over three hun- 
dred. Following this Federalist victory, came the approval The ninth 
of Mar}'land, South Carolina, and New Hampshire, so that ^^^*^' 
the nine states legally necessary had been secured. 

iig. The Later States. — It cannot be said that the Virginia, 
troubles of the Federalists were over yet, for Virginia was Fiske, 334- 
the most populous state, and New York, though small, was 338- 
commercially important. The Anti-federalists in the former 
were led by ardent Patrick Henry, who made every effort 
to form a Southern confederacy. His attacks in the con- 
vention were directed largely toward the absolutism of the 
President and the absence of a bill of rights. As he proved 
no match for Madison aided by John Marshall, the state, by 
a vote of eight5'^-nine to sevent)r-nine, decided to cast in its 
lot with the new Union. 

In New York the opposition was ably organized by Gov- New York, 
emor Chnton and still more ably conducted by Malancthon 



102 



The American Federal State 



Fiske, 340- 
344- 

Lodge, Ham- 
ilton, 70-80. 



The non- 
ratifying 
states. 

Johnston, in 

Lalor.III, 

788. 



Adoption of 

the amend- 
ments. 

Schouler, 

United 

States, 

(ist ed.), I, 

102-104. 



The Consti- 
tution recog- 
nized the 
existence of 
a state 
" partly fed- 
eral and 
partly 
national." 

Federalist, 
No. 39. 



Smith. But for the genius of Hamilton, the Anti-federalist 
majority could not have been overcome; yet the fact that 
he made a convert of his chief adversary is sufficient proof 
of the abiUty with which he defended the principles of 
the Constitution. Even then the state was carried by the 
narrow margin of two votes. 

North Carolina and Rhode Island were still outside the 
Union and saw fit to remain so, the former until late in 
1789, the latter until May, 1790. As the Congress of the 
Confederation practically expired in October, 1788, and as 
the new central government went into operation in the 
spring of 1789, it has always been an interesting question 
as to the status of these two states which sought to refrain 
from any part in the great political Revolution of 1787. 

120. The First Ten Amendments. — Massachusetts was 
not the only state that feared to adopt the Constitution 
without a bill of rights to protect individuals from the new 
central government. So strong was the feehng in favor of 
adding some constitutional guarantees that the citizens 
should not be arbitrarily treated that ratification in several 
of the conventions had only been secured by promising that 
the first Congress should submit a bill of rights to the dif- 
ferent states. This was accordingly done, and ten of these 
amendments were adopted by three-fourths of the states and 
declared to be a part of the Constitution December 15, 
1791. 

121. The Federal State. — The constitutional convention 
clearly recognized the fact that the United States was not 
really a league as the Articles of Confederation declared, 
but was much more united. They also saw that to create a 
centralized national government would be impossible, and 
so adopted the compromise system which moderate men 
spoke of as "partly national and partly federal [confed- 
erated]." They did not realize that the kind of a state 
which really existed was a Federal State, but they neverthe- 
less distributed the powers of government between the cen- 
tral and the state governments in such a way that each was 



The Constitution 103 

given those duties it could best perform. In other words, 
while the idea of a Federal State was not clear to them, the 
method of government necessary for such a state was fairly 
well appreciated. 

122. The Central Government and the Constitution in 1787 The value of 
and since. — Fortunately the boundary which separated the ^ ^rant of 
State sphere from the national sphere was so placed that all powers, 
subjects properly belonging to the central government under 
conditions at all like those of 1787 were granted to it, while 
everything else was left to the states. That the national 

sphere was not hmited as much as the people would have 
wished, was due to the reaction against the weakness of the 
Confederate Congress and the breadth of view of the leaders 
in the Convention. That the powers delegated to the ; 
national government now are nominally the same as those ? 
delegated one hundred years ago, is due still more to the 
fact that those powers were granted in general and liberal 
terms, and that the interpretation of the Constitution by the 
different departments of government, especially the Supreme 
Court, has given these powers a broader scope than was first 
intended. Were it not for this, our unwritten Constitution 
could not have supplemented the written Constitution so as 
to give the central government the power it has come to 
need as the national feeling of the people has grown stronger, 
and the written Constitution must have long ago been sup- 
planted by a new instrument better suited to the conditions. 

123. A Government of Checks and Balances. — The eigh- The political 
teenth-century ideal of good government was one of checks p^^^°^ '.'.** 
and balances. This was undoubtedly due to the behef of 

the people that individual liberty should be the prime object 
of government. Most governments had been so oppressive 
that all governments except those under the immediate 
supervision of the people, as, e.g. in the town meetings, were 
looked upon with distrust, almost as a necessary evil. In 
order therefore to keep the government from harming the 
individual, an attempt was made to separate the legislative, 
executive, and judicial departments with the intention of 



I04 



The American Federal State 



balancing them against each other, and making them serve 
as checks upon one another. It was customary, however, 
to give the executive some legislative power, as the veto, in 
order to act as a further check upon the legislature, while 
the legislature could interfere in the execution of the laws in 
various ways. The central government created by the Con- 
stitution of 1787 was the nearest approach to this eighteenth- 
century ideal that ever existed. John Adams has enumerated 
in a famous letter (18 14) the principal checks and balances 
at the time the new government was inaugurated. 



John 
Adams's 
enumeration 
of balances. 

Adams, 
Works, VI, 
466-468. 



"Is there a constitution on record more complicated with balances 
than ours ? In the first place, eighteen states and some territories are 
balanced against the national government. ... In the second place, 
the House of Representatives is balanced against the Senate and the 
Senate against the House. In the third place, the executive authority 
is in some degree balanced against the legislature. In the fourth 
place, the judiciary power is balanced against the House, the Senate, 
the executive power and the state governments. In the fifth place, 
the Senate is balanced against the president in all appointments to 
office and in all treaties. This, in my opinion, is not merely a useless 
but a very pernicious balance. In the sixth place, the people hold in 
their own hands the balance against their own representatives by 
biennial which I wish had been annual elections. In the seventh 
place, the legislatures of the several states are balanced against the 
Senate by sextennial elections. In the eighth place, the electors are 
balanced against the people in the choice of the president. And here 
is a complication and refinement of balances which for anything I 
recollect is an invention of our own and peculiar to us." 



The two 

views. 

Story, Com- 
mentaries, 

hh 306-372. 



124. Theories concerning the Constitution. — If the politi- 
cal leaders of the last century did not fully apprehend the 
idea of a Federal State, we certainly could not expect the 
people to do so. As a consequence, the new Constitution 
had barely been completed before one set of persons 
wished to consider it as a compact between the states who 
still retained their sovereignty and who had united to form a 
central government but not a central State. A second set 
believed that the United States was more than a league, and 
that it was the people of the United States who were sover- 



The Constitution 



105 



eign. These two views furnish the clew to the interpretation 
of our early history, the advocates of each view struggling 
for supremacy. 

125. Compact Theory. — While the views were not dis- 
tinctly formulated at first, there is little doubt that during 
the early years of the Constitution most of the people would 
have been adherents of the compact theory. To them the 
states were much more real that the United States, and if 
they had been obliged to locate sovereignty in one or the 
other, with little hesitation it would have been given to 
the states. This view was strengthened by the claim of the 
states to sovereignty under the Confederation, by the strong 
spirit of particularism existing everywhere, by the fact that 
no state was bound to the new system till it gave its own 
consent, that the United States was apparently a creation of 
the states, that in ratification some of the states had claimed 
the right to withdraw their consent if they felt the central 
government exceeded its powers, and finally that there was 
little opposition to the tenth amendment which many con- 
strued as a recognition of state sovereignty. 

126. National Theory. — The national theory did not find 
as wide popular acceptance at the first, though it was 
the view of the Constitution taken by many of the leaders 
from the beginning. \As the spirit of nationality grew 

\ stronger, it gained adherents ever}^where, especially among 
the party that controlled the central government.') Its advo- 

Vcates claimed that the Union existed as early as any of the 
states, that the states never had exercised all the powers of 
sovereignty even under the Confederation, that ratification 
by states did not prove state sovereignty, for ratification 
was not entirely voluntary, and in the case of Rhode Island 
and North Carolina, not at all so ; and that a change in the 
Constitution, completely altering the sphere of the states, 
might take place without any one so-called sovereign state. 

127. The Preamble. — The basis and purposes of the 
new Constitution were set forth in the preamble. We notice 
immediately the great difference between this paragraph 



Hold of the 
compact 
theory on the 
people. 

Lodge, 

Webster, 

174-181. 



Basis of the 
theory. 

Story, Com- 
meJitaries, 
\\ 207-217. 

Johnston, in 
Lalor, III. 
788-797. 



Comparison 
with the 
Articles. 



io6 



The Afnericau Federal State 



Organization 
and powers 
of the Senate. 

Schouler, 
Constitu- 
tional 
Studies, 
104-113. 



Organization 
and powers 
of the House. 



and the statements of the Articles of Confederation cover- 
ing the same subjects. It was no longer a "firm league 
of friendship," but a union with a constitution ordained by 
the " people of the United States," that phrase which was 
to be the bone of contention for nearly a century of bitter 
I controversy. The objects stated are more positive in 
character as well as more numerous than those of the 
Articles, so that the different spirit which the document 
breathes is apparent from the very beginning. 

128. The Congress : the Senate. — The legislative depart- 
ment under the new system was to consist of two houses 
essentially different in composition but practically alike in 
powers. The upper house or Senate was usually spoken of 
as federal, for in it each state had two members, and no state 
was to be deprived of representation without its own con- 
sent. But as each member had a vote, was not bound by 
instructions of the state legislature and could not be recalled, 
the senator was a very different person from the state dele- 
gate to the Confederate Congress. Senators had to be at 
least thirty years of age, an inhabitant of the state which 
they represented, and nine years a citizen of the United 
States. They were to be chosen by the state legislature for 
a term of six years, one-third retiring every second year. 
Like all others connected with the United States government, 
they were compensated from the national treasury. As the 
Senate was a small body, it was believed to be more digni- 
fied than the House, and especially suited to transact the 
special business left to it. It could give or withhold its 
consent to the more important appointments made by the 
President, could ratify treaties by a two-thirds vote, sat as a 
court for the trial of impeachment cases, but could convict 
only when two-thirds favored such action ; and, in case the 
Vice-president was not elected by the "college," it was to 
choose one from the two highest. 

129. House of Representatives. — The House was consti- 
tuted on what was then called the national principle, i.e. 
the number of members was in proportion to population, 



The Constitution loy 

but each state had at least one member. In order to leam 
the exact population a census was to be taken every ten 
years, and the members to be apportioned according to the 
number of free inhabitants and three-fifths of all others. 
Persons could not be chosen representatives unless they 
were twenty-five years of age, had been citizens of the 
United States seven years, and were at that time inhabitants 
of the state. In the election of representatives there was no 
attempt to make the franchise national ; but those who voted 
for members of the lower house of the legislature in the dif- 
ferent states might also vote for members of Congress. As 
the House was the more popular branch of Congress, it was 
given sole power to originate money bills ; and when the 
electors failed to choose a president, the members voting by 
states were to select one from the five (afterward three) 
highest on the list. Following the custom in England and 
America, the House had exclusive power of impeachment. 

130. Powers of Congress. — Unlike the powers exercised General. 
by the state legislatures, those of Congress were enumerated, schouier, 
though in general terms. Several points are worthy of Comtuu- 

„■ /• n 1 tional 

attention, r irst 01 all, the new government was to be prac- studies, 115- 
tically independent, as Congress had full power to borrow 147- 
money and to levy duties and other taxes, with the one hmi- Financial, 
tation that all direct taxes should be in proportion to popu- 
lation. In the exercise of its other powers as well, Congress '■ 
legislated not for the states, but for individuals with whom 
the central government came into direct contact. It had Commercial, 
power over interstate commerce, over uniform laws of natu- 
ralization, over post-offices, patents, and copyright. In mili- Military, 
tary matters it could not only declare war, but could raise 
an army and create a navy of its own, and control the militia 
in case of need. Over foreign affairs it had exclusive power. Foreign 
as the states were forbidden to send or receive ambassadors ^ff^'^'s- 
or make treaties and alliances. All territory belonging to Territorial, 
the United States was subject to the control of Congress, 
and it alone could admit new states. Most important of The " elastic 
all, it was vested with power " to make all laws necessary clause. 



io8 



The American Federal State 



Separation of 
the depart- 
ments. 

Hinsdale, 
{§245. 246. 



President's 
powers. 

Schouler, 
Constitu- 
tional 

Studies, 156- 
168. 



Election. 



Organization 
and jurisdic- 
tion. 



and proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the gov- 
ernment of the United States, in any department or officer 
thereof." This has frequently been called the " elastic 
clause." 

131. The Executive. — The effort was made to keep the 
departments separate by making them in no ways respon- 
sible to each other. Congress had nothing to do with the 
choice of the President, and it could not control his action 
except through impeachment. The judges were appointed 
by the executive, with the consent of the Senate ; but they 
also were removable only by impeachment. 

In the President was vested the whole executive power. 
This included power to execute the laws, to command the 
army and navy, to appoint all important officials, to grant 
pardons and make treaties, with the concurrence of two- 
thirds of the Senate, and to attend to all administrative mat- 
ters. He was to represent the whole United States, and not 
districts or states, like members of Congress. He was to 
be chosen by electors, who were selected by the states and 
were as numerous as the senators and representatives from 
each state. These electors were to be the most prominent 
men of the state, and were to use their own judgment in the 
selection of President and Vice-president. No one, however, 
was eligible to the office of President or Vice-president 
unless he was a native born citizen or a naturalized citizen 
in 1788, at least thirty-five years of age, and fourteen years 
a resident of the United States. In the performance of his 
duties, the President was to be aided by officials merely 
mentioned in the Constitution as heads of departments ; 
but these men were nothing more than the servants of the 
President. 

132. The Judiciary. — The national judiciary was estab- 
lished for the trial of those cases, not numerous but impor- 
tant, that could not from their very nature be properly 
decided by state tribunals. According to the Constitution, 
there was to be a Supreme Court and such inferior courts 



The Constitution 109 

as Congress should establish. All judges were to be ap- Schouier, 
pointed for good behavior by the President, with the consent (^°"^^^*"- 
of the Senate. The courts were to have jurisdiction in all studies, 169- 
cases arising under the Constitution, the treaties, or national ^77- 
laws, in cases affecting our representatives abroad, or dealing 
with admiralty and maritime jurisdiction. All cases where 
a state was a party, or between citizens of different states, or 
between a foreigner and a citizen, were to be tried in these 
courts. 

133. The Nation and the States. — In the system recog- Relation of 
nized by the Constitution the nation and the states were *^ ^^°" 
very closely related. The two together formed a whole — Compare 
each by itself an incomplete part. While they had concur- ^^^r^^zri 
rent powers over certain subjects, as a rule the powers were 
mutually exclusive. The separation of the state and national 242. 
spheres was accomplished by delegating certain powers to the 

United States government, and prohibiting some of those and 
some others to the states. / Within its own sphere each was; 
supreme ; but in case they overlapped and the two came into: 
conflict, precedence was given to the United States by virtue 
of the provision that the Constitution, the national laws 
made in agreement with the same, and the treaties should 
be the supreme law of the land. ; The dependence of the 
nation on the states is shown not only in the need of state 
law to supplement national law, but in the method of elec- 
tion of many of its officials. By refusal to enact certain - 
necessary laws the states might interfere with, or even pre- 
vent the election of senators, representatives, and presiden- 
tial electors. Since almost no instances of such actions 
have occurred, it is quite apparent that the states believed 
they would be the ones injured by an attempt of that kind. 

134. Prohibitions on the States. — Among the things pro- 
hibited to the states were the making of treaties and alli- 
ances with other states and foreign powers. The states Schouier, 
were not allowed to coin money, make paper money, or ^°'"f^^"- 
allow paper to be used as legal tender, or pass any law studies^ 
impairing the obligation of contracts. The war powers were 148-155- 



no 



The American Federal State 



In the Consti- 
tution and 
amendments. 

Schouler, 
ibid., 148- 
150, 190-197. 



Different 
views. 

Hinsdale, 
§§ 241-247. 



expressly limited to repelling invasions ; and they could levy 
duties only with the consent of Congress and for the national 
treasury. As with the United States, the granting of titles and 
passing bills of attainder and ex post facto laws were prohibited. 

135. Prohibitions and Limitations on the United States 
Government. — Beside the prohibitions placed upon the 
national government by the Constitution proper are those 
dealing especially with the rights of individuals in the first 
nine amendments. The principal constitutional prohibitions 
deal with duties on exports from the states, ex post facto 
laws, bills of attainder, and titles of nobility ; the principal 
limitations with the writ of habeas corpus, which shall not 
be suspended except in case of war, with direct taxes, with 
commerce, and drawing money from the treasury. In the 
" bill of rights " the citizen is guaranteed immunity from 
interference by the central government regarding religion, 
freedom of speech and the press, the keeping of arms, and 
quartering of soldiers. In criminal cases full provision is 
made for the fullest rights of the accused ; and the ninth 
amendment declares that " the enumeration in the Consti- 
tution of certain rights shall not be construed to deny or 
disparage others retained by the people." 

136. Sources. — Historical writers have found some diffi- 
culty in agreeing upon the sources from which the Con- 
stitution was really derived. Years ago there was quite a 
widespread feeling that a great part of the Constitution was 
invented by the Convention of 1787; but although some 
features are now spoken of as " original," practically all 
believe the Constitution is the product of the historical 
experience of the race, and that the great merit of the 
Convention was that it did not try to create anything, but 
adapted institutions already in existence to suit the condi- 
tions. Yet in determining what institutions were most used, 
writers have differed widely — one school emphasizing the 
dependence on English institutions, the other caUing atten- 
tion to the extent to which preexisting American institutions 
and ideas were used. 



The Constitution III 

137. English Sources. — According to the most radical The Consti- 
English view, voiced by Sir Henry Maine, our Constitution *u*i°° i° 

° ' ^ some ways 

is "in reality a version of the British Constitution." The a copy. 
more moderate view is expressed by Dr. Stevens when he c^^tis in 
says it is "not a mere imitation," but an "historical devel- Winsor, vii, 
opment from English forms." Taylor expresses much the ^237-246. 
same idea in the statement that " every American state is a 
mere reproduction of the central organization of the EngHsh 
Kingdom, with such modifications as have necessarily resulted 
from the abolition of nobility, feudality, and Kingship." In 
speaking of the model of the President, Bryce says the Con- 
vention " made an enlarged copy of the state governor, or, to 
put the same thing differently, a reduced and improved copy 
of the Enghsh King." So, that even with those who beheve 
most strongly in the influence of English sources, the idea of 
development through colonial sources rather than conscious 
imitation is uppermost. 

138. American Sources. — Other writers deny that we A purely 
were so dependent on England, directly or indirectly. American 
They not only call attention to the multitude of instances 

where the Convention made use of institutions existing in ^^^' ^ 
the states before 1787, but urge that many of the ideas of Johnston, m 

' " *= ^ New Prince- 

our federal system are purely American. For example, the ton Review, 
principle of federalism is in nowise Enghsh, neither is the iv (1887), 
idea of a written constitution. They say that England never 
furnished anything like the electoral college or even our 
Supreme Court, and that our institutions were developed as 
much from the common stock of political ideas as from 
those brought over from England. 

The truth in each of these arguments must be apparent. The truth in 
It is of course impossible to say how far the colonial ^^^ ' ^°^' 
institutions are English, but we do know that there is 
scarcely a feature of either the Constitution or the national 
government that cannot be traced to earlier American insti- 
tutions, while direct conscious imitation of the English 
system of 1787 played a very small part in the work of the 
Convention. 



112 The American Federal State 

QUESTIONS AND REFERENCES 
The Work of the Convention (§§ 106-116) 

1. What was the most distinctive feature of the Virginia plan? 
Compare the essential parts of the Virginia plan, the New Jersey plan, 
and that of Hamilton. What sections, if any, of the last two were 
made parts of the Constitution? 

2. What meaning was given to the words national and federal by 
the people of 1787? Why did the small states especially fear a 
strong central government? 

3. Did equality of representation in the Senate prove that the 
states were sovereign? that they were equal in power? Was there 
any difference between a senator and a delegate to former congresses, 
or a member of the German Bundesrath to-day as to relation to his 
"state" and his rights in voting? Discuss fully. 

4. State clearly the conflicting opinions that were harmonized by the 
compromises. Which side won in each case? Were any of the com- 
promises unnecessary? Were any of them harmful in our later history? 

5. In what ways are the constitutions of the principal countries 
amended at the present time? Was the method of our Constitution 
considered too flexible or too inflexible in 1787? What is our opinion 
about that now? 

Ratification (§§ 11 7-1 20) 

1. Which compromise did most in getting votes for the Constitution? 
Which compromise stood most in the way of ratification? 

2. Why was the Constitution ratified by conventions instead of state 
legislatures? Why was it not ratified by popular vote in the states? 
by a majority popular vote of the people of the nation as a whole? 

3. As the sphere of the states was different from that under the 
Confederation, did ratification through the states imply that the new 
government was not national ? What plan of ratification was proposed 
by the Virginia plan? 

4. Study Henry's argument in the Virginia Convention. Estimate 
the value of each objection. Have any of his prophecies proved true? 

5. What semi-conditions were attached to the ratifications of Vir- 
ginia and New York ? Were they legally grounds for withdrawal 
from the Union? 

6. When did the Confederation cease to exist? why? What in 
your opinion was the position of North Carolina and Rhode Island 
before they united with the other states? Were they sovereign, or 
did their actions prove conclusively that they were not ? Why was 
there "a great political revolution of 1787"? 



The Constitution 113 



General Character of the Constitution (§§ 121-126) 

a. On the compact theory especially consult Davis, Rise and Fall 
of the Confede7-ate Government, I, Part II; Stephens, War between 
the States, I, colloquys III-VI, VIII, IX, XI; Sage (Centz), Republic 
of Republics, 41-69, 159-270. 

b. Accounts more favorable to the national theory may be found in 
Johnston on State Sovereignty, in Lalor, III, 78S-800; Hare, American 
Constitutional Law, I, Lectures IV-VII ; Hurd, Theory of National 
Existence, chap. IV. 

1. Select the "national" and the "federal" features of the Consti- 
tution. Do you think that the United States of 1788 was a Federal 
State? Apply explanation (§ 12). 

2. Illustrate by example from later history how interpretation by 
the different departments has given the powers of the national govern- 
ment broader scope than was first intended. 

3. \\Tiat is the real value of "checks and balances"? To what 
extent are they necessary? ^^^^at are their disadvantages? 

4. Define the words sovereign and compact. Is the idea of volun- 
tary agreement necessary to the latter? Was the union of the states 
voluntary in 1 787 ? 

5. Name all the parts of the Constitution that tend to confirm the 
compact theory; all that seem to indorse the national theory. 



The Constitution in Outline (§§ 127-138) 

a. On English sources see Bryce (abd. ed.), chaps. II-IV; Taylor, 
English Constitution, Introduction; and Stevens, Sources of the Con- 
stitution. On American sources consult Morey, Sources of American 
Federalism, A. A. A., VI, 197-226; Fisher, Evolution of the Constitu- 
tion, 105-309; Robinson, Original Features, in A. A. A., I, 203-243. 

1. Study the Constitution and the first amendments carefully. 

2. Make a table comparing on all important points the Articles of 
Confederation and the Constitution. Consider at the least : objects, 
form of government, powers of central and state governments, relations 
to states and individuals and method of amendment. Learn the 
preamble, ^^^lat was meant by the "people of the United States"? 

3. What are the advantages of a two over a one chambered legis- 
lature? what of the different methods of representation in Senate and 
House ? 

4. \Vhy is the power of Congress "to make all laws necessary and 
proper for carrj'ing into execution the foregoing powers," etc., spoken 
of as the " elastic clause "? 



114 ^-^^ American Federal State 

5. What difference would it have made with our history if the 
power of the national courts had been restricted to the laws enacted 
by Congress? 

6. What is the difference between delegated and reserved powers? 
between inherent and implied powers ? If a power is " delegated," 
may any inference be drawn as to a power similar in character but not 
mentioned? 

7. Classify all provisions of the Constitution or first ten amend- 
ments that deal with liberty as civil, religious, or political. 

8. Select some one department and try to trace the origin of its 
different features and powers. 



CHAPTER VI 

NATIONALITY AND COLONIALISM (1789-1815) 
General References 

Mace, Method in History, 145-184. The meaning of events. 

Johnston, American Politics, chaps. II-VIII. 

Channing, Student's History, 279-368. 

Hart, Formation of the Union, 141-222. 

Walker, Making of the Nation, 73-273. 

Von Hoist, Constitutional History, I, 64-272. 

Curtis, Constitutional History, II, 1-230. 

Larned, under United States. 

Schouler, United States, I-II. 

McMaster, People of the United States, II-III. 

Hildreth, United States, IV-VI. 

Adams, United States. 8 volumes. The highest authority on the sub- 
jects covered. 

Patten, Political Parties. 

Johnston, in Lalor on Federalists, Democratic-Republicans, Embargo, 
Bank Controversies, Hartford Convention, etc. 

Taussig, Tariff History. 

Winsor, America, VII. 

Macdonald, Select Documents (1776-1861), 46-207. Texts and notes. 

Lodge's Washington (A. S.), 2 volumes ; Marshall's JVashington, 
5 volumes; Morse's John Adams (A. S.) ; Lodge's Hamilton 
(A. 8.); Sumner's Hamilton; Morse's fefferson (A. S.); Schou- 
ler's fefferson ; Gay's Madison (A. S.) ; Steven's Gallatin (A. S.) ; 
Pellew's fay (A. S.); Adams's Randolph (A. S.). 

139. Character of Nationality. — There can be little doubt Nationality 
that, from the standpoint of our Federal State, the most means more 

^ than a strong 

important political fact of the century after we became central gov- 
independent is the development of nationality. Another emment. 
fact of hardly less importance is the development of democ- 
racy. It must not be supposed that the terms development 

IIS 



ii6 



The American Federal State 



Nationality 
and colonial- 



Cf. Mace, 
Method, 145- 
149. 

Cf. Johnston, 
in Lalor, I, 
930-936. 



Nationality 
and democ- 
racy. 



of nationality and growth of the national government are 
synonymous. The former includes the latter ; but while a 
spirit of nationality must sooner or later lead to a strong 
national government, it means rather a similarity in all 
social, economic, and political institutions in the different 
parts of the nation, and a common feeling on the part of 
all citizens with regard to matters of national concern. In 
a brief sketch it is, of course, impossible to more than indi- 
cate some of the steps by which the people of the United 
States became united ; but an effort will be made to show 
how this was done by tracing two kinds of changes : first, 
those directly connected with the national government ; 
secondly, those produced by alterations in state laws and 
customs. The importance of the different movements by 
which the action of the states on the many subjects left to 
their supervision became more uniform, has been largely 
overlooked by most of our historians, and the study of the 
subject is of recent date. 

140. Three Periods of National Development. — For the 
sake of convenience the development of nationality during 
the era from 1789 to 1877 will be treated under three heads. 
The first covers a period of about twenty-five years in which 
nationality was making a struggle for an existence worthy of 
the name. (The chief obstacles in its path came from past 
conditions, such as the dependence of the states upon 
Europe instead of upon each other, the extraordinary 
strength of particularism, the distinctions in social classes, 
and the lack of economic independence, which is one of 
the essentials of national life. The second period begins 
with the changes following the War of 18 12 and the over- 
throw of Napoleon. Its most marked characteristic is the 
growth of a national democratic spirit which breaks away 
'from traditions in every line, and reaches a climax in the 
two decades following 1830. The third period is that in 
which the slavery question is most prominent. The terri- 
torial expansion which led directly to slavery agitation began 
about 1845. The struggle between free and slave labor to 



Nationality and Colonialism 117 

see which should be made national resulted in the triumph Nationality 
of the former, and through war, not only destroyed slavery, ^"'^ slavery. 
but removed the conditions which underlay the slave sys- 
tem, and came near injuring the rights of states to which 
slavery had appealed in its extremity. It must not be sup- 
posed that, because the national era is divided into periods 
named from the most striking characteristic, each period 
marks the beginning and close of that movement. For 
example, we must not imagine that democracy exerted no 
influence before 181 5 or after 1845, but before 1815 it is 
less prominent than colonialism, and after 1845 i^ sinks into 
insignificance before the contest over slavery. 

141. Conditions affecting Nationality (1790). — The most- Anti-national 
important influences that kept the states apart in 1790 were , '^°°'^^*^°"^* 
particularism, sectionalism, and physical conditions. Except-/ 
for their interest in the national government and their per- 
sonal loyalty to the great leader who had been made Presi- 
dent, the people of the states felt their separateness from 
each other. The peculiar customs and occupations of 
colonial times gave way very slowly to new methods. Few 
persons ever crossed state boundaries so as to enter into 
sympathy with their neighbors. Sectionalism was an addi- 
tional disadvantage, especially as gradual emancipation at 
the North tended to separate the sections more on the 
slavery question. But it was the antagonism between the 
commercial and agricultural interests that presented even 
a graver danger at this time. These tendencies toward 
separateness could have been easily overcome had there 
existed railroads and telegraph lines as at present, but means , 
of communication were very imperfect. Even if travelling 
was not dangerous, it was attended by very great discom- 
forts. It took three days to get word from New York to 
Boston, and a month to go from Maine to Georgia by water. 

To counterbalance these anti-national influences were all National 

.,..,.. - , , . ,. . . , influences. 

of the similarities of race, language, and of religious, social, 
and political institutions, the common commercial interests, 
and, most of all, the new central government clothed with 



ii8 



The American Federal State 



The problem 
of establish- 
ing the new 
government 



English cus- 
toms followed. 
Cf. Ford, 
Amer. Poli- 
tics, chap. VI. 



The presi- 
dential suc- 



Cf. Ford, 
chap. VI. 



Executive 
departments 
under the 
Confedera- 
tion. 



such power that it could represent the whole country with 
honor. 

142. Organization of the Government: the President. — 

The new national government was like a great machine 
which had been carefully constructed, but whose usefulness 
was yet to be proved. No one knew how well the parts 
would work together, how much political steam would be 
required to run it, and whether that much steam could be 
produced, or whether the machine might not prove so 
efficient that it would be cast aside by the overcautious 
people as a menace to the rest of the political system, that 
is, to the rights of the states and the liberty of the individual. 

That the government proved a success was largely due to 
the personal popularity of Washington and his judgment 
both in the selection of advisers and in the choice of poli- 
cies. He had been chosen unanimously by the electors, and 
was inaugurated with considerable pomp. He had gone to 
Congress with a coach and six, had read his speech like an 
English King addressing a ParHament. The speech had been 
discussed at length in committee of the whole, and a reply 
had been framed according to the English custom. Through 
this speech and the secretaries' reports, the executive had 
exerted very great influence in legislation; but both the 
President and the heads of departments had been formally 
excluded from the floor of Congress. 

Washington might have made our system more like that 
of England had he chosen to accept office for more than two 
terms. Even as it was, a custom grew up, like that used in 
the mother country, of selecting as chief executive the lead- 
ing party man who had been trained in administrative work 
and who was the " heir apparent." This custom lasted until 
supplanted in 1829 by the democratic custom of choosing 
popular heroes irrespective of training. 

143. The Executive Departments. — It seemed to have 
been pretty generally understood in the Convention that a 
large part of the work of the executive should be carried on 
through departments. During the Revolutionary War and 



Nationality and Colonialism 119 

the Confederation, matters pertaining to foreign affairs, 
finance, and war had been dealt -vvith at first by boards, 
and after 1781 by heads of departments aided by other 
officials. After the resignation of Superintendent of Finance 
Morris, Congress, dreading such efficiency, went back to the 
board system for the Treasury ; but foreign affairs, war, and 
the post-office remained in charge of single individuals. 

Abandoning the board system altogether. Congress during Departments 
the summer of 1789 organized three departments, while the reorganized 
President was given two other assistants. The departments 
were those of State, the Treasury, and War; the assistants uniudstaus 
were the Attorney-general and the Postmaster-general. The i, 93-96. 
three secretaries and the Attorney- general in time came to walker, 
form the President's cabinet, which was, from the character Nation, 88- 
cf our system, essentially different from the Enghsh cabinet. 
The secretaries could not be members of Congress, and 
the only times they attempted to speak in either house the 
effort was unproductive of results. Nevertheless they did, 
largely through the influence of Hamilton, follow the English 
method of making themselves felt in the making of laws ; 
though as later cabinets contained men of less political 
force, this influence was largely temporary. 

144. The Congress. — The method of election for mem- Methods of 

bers of the House shows the lack of uniformity in poUtical ^'^ction. 

methods prevailing throughout the countr}^ In some states McMaster, 

congressmen were chosen by districts, in other states on a t *"/ ^^ '^' 
° . •' ' . i> 530-532- 

general ticket. There was no set day, and in certain locali- 

Hart, Union, 

ties the polls were kept open two or three weeks. Even the ^ 73. 
ballot was not in use everywhere. 

The House was at first more powerful than the Senate, Organization 
probably on account of its more popular character and the of the House, 
importance of financial measures, but the Senate gradually Schouler, 

J J -i 1 • . •• J- . •■• T-iu 1 United states, 

made good its claim to a coordmate position. The speaker j g^^^ 
was chosen as a mere presiding officer, like those in most of 
the colonial assembUes and the House of Commons ; but 
after 1790 had the appointment of temporary committees, 
and later became a party leader. As the amount of business 



120 



The American Federal State 



Secret ses- 
sions of the 
Senate. 



The judici- 
ary act 
(1789). 

Schouler, 
United States, 
I, 96-97. 

Cooley, 
Cons f I Hist., 
42-52, 



Relative un- 
importance 
of the judici- 
ary. 



Chishohn v. 
Georgia 
(1792) . 

Walker, 
Nation, 127, 
128. 



was small, the system of standing committees did not come 
immediately into use, but was gradually developed. 

During the first five years the business of the Senate was 
transacted behind closed doors, but on many important 
measures we know that the decision rested on the vote of 
the Vice-president. 

145. The Judiciary. — The organization of the courts, 
which by the Constitution had been left to Congress, was 
part of the work of the first session. A law was passed in 
September, 1 789, providing for a supreme court, three circuit 
courts, and a number of district courts, each covering a part 
or the whole of a state. Six justices were appointed for the 
Supreme Court. There were no separate circuit judges, but 
the work of each circuit court was left to two justices of the 
Supreme Court and the judge of the district in which the 
session was held. As assistants of the judges, attorneys and 
marshals were appointed for four years. 

The relative importance attached to the duties of the 
Supreme Court may be appreciated when we know that 
before 1801 five appointments to the chief judgeship had 
been made, two of which were declined, one rejected by 
the Senate, and two accepted only to be given up later for 
more attractive offices. In sharp contrast with these changes 
is the long term of Chief Justice Marshall, from 1801 to 1835, 
during which he not only established the claim of the court 
to a position by the side of the other departments, but gave 
incalculable strength to the national government. 

In the first important case decided by the court, Chisholm 
V. Georgia, in 1792, Justice Iredell had upheld the extreme 
national theory of the Constitution, and the court had 
decided that a state might be sued by a citizen in a United 
States court. This so alarmed the advocates of particularism 
that the eleventh amendment was proposed and ratified in 
1798. This was a serious blow to the judiciary and to 
nationalism as well. 

The lack of discretion with which the Federalists used 
the powers of the central government during the adminis- 



Nationality and Colonialism 121 

tration of Adams (§ 153) produced a widespread belief that 
the interpretation of the Constitution could not safely be left 
to the national courts by virtue of their jurisdiction over 
"cases arising under the Constitution." In consequence, Marburyv. 
the reasoning of Marshall and the decision in Marbury v. dso^)^'* 
Madison (1803) was of especial moment. The chief justice 
showed that unless the court could interpret the Consti- 
tution, and set aside a law conflicting with it, Congress 
Avould be unrestrained in the use of legislative power. He 
appUed his argument by declaring unconstitutional a law- 
which would have increased the jurisdiction of the Supreme 
Court, and thus readily gained acquiescence in the stand 
taken. 

146. Questions of Policy : Finance. — The most important influence of 
matters to be decided by the new government in 1 789 were Hamilton, 
those relating to finance, foreign policy, and the execution Mace, 

of laws. ^^8_ 

In the creation of a system of finance the master mind of 

TT -1 1 • rr-i Macdonald, 

Hamilton was everywhere predommant. The great Secre- nocutnents, 

tary of the Treasury had in view three objects: (i) to 46-76,98- 
establish the national credit on a firm basis; (2) and most 

important, to strengthen the national authority; and (-i) to Von Hoist, 

^ ' ° J } \o/ Const' I Hist., 

aid in the mdustrial development of the country. To this i, 80-105. 
end he proposed three things : ( i ) different kinds of taxes j 
(2) payment in full of the pubhc debts; (3) the creation 
of a national bank to assist the goverament in caring for 
its business interests. 

147. Revenue. — The first revenue act passed by Congress 
(1789) was one imposing duties on imports with a view also 

to " the encouragement and protection of manufactures." Customs and 
After Hamilton made his famous report on manufactures ^^^^ ^ 
two years later, this tariff was several times revised, and 

Walker 

the duties raised. This revenue was supplemented by the Nation',%ir 

excise upon liquors which was a form of internal revenue 87. 144-147- 

that brought certain manufacturers into close contact with Johnston, 

the government. These excises caused considerable oppo- ^° Laior, ii, 
sition, especially in Pennsylvania where the distillers of the 



122 



The A^nerican Federal State 



Three classes 
of debt. 

Walker, 
Nation, 78- 
81. 



Compromise 
over assump- 
tion. 

McMaster, 
United States, 
1.579-583- 



Its purpose. 



mountain districts organized what is known as the Whiskey 
Rebellion. But the new government was as energetic in 
enforcing its laws as it had been fearless in making them, 
and this added greatly to its prestige. Later a tax on car- 
riages (1794) was added, and in 1798 the first direct tax 
was levied upon slaves, houses, and lands. When the Repub- 
licans came into power, they repealed the internal revenue 
laws, to which they had been opposed; and except for a 
brief period during the War of 181 2 the sole sources of 
revenue until the Civil War were customs and the public 
lands. 

148. The Public Debts. — The second great financial 
measure dealt with the domestic, foreign, and state debts. 
Hamilton was anxious to show that the United States always 
paid its debts in full, so that he might attract the commercial 
classes to the new government. In order to increase the 
national power to as great an extent as possible, he also 
wished to have the government assume the debts incurred 
by the states during the Revolutionary War. He encountered 
no serious difficulty in persuading Congress to assume all of 
the foreign debt and very little in inducing it to pay all domes- 
tic bonds at their face value ; but the last proposition — the 
assumption of state debts — was vigorously opposed by those 
states whose debts were either insignificant or had already 
been paid. As it happened, these states were largely 
devoted to agriculture, and were further offended by the 
secretary's anxiety to please persons interested in commerce. 
In order to gain enough votes for the measure, Hamilton 
agreed that several Northern votes should be cast in favor of 
having the new capital on the Potomac, and this only 
incensed the Southern agricultural interests the more. 
While these measures gave the United States a financial 
standing it has never wholly lost, it may well be questioned 
whether the country did not pay too high a price for 
" state assumption." 

149. The National Bank. — To facilitate the transaction 
of business by the government, and to give the people the 



Natiofiality and Colonialism 123 

benefits of a national paper currency, Hamilton in 1 790 pro- 
posed a national bank upon the model of the Bank of Eng- 
land. The bill creating such a bank was carried in the face 
of considerable opposition, which was based upon the sup- 
posed unconstitutionality of the measure. When it was sent 
to Washington, he asked the advise of his cabinet upon it. 
The opinions of Jefferson and Hamilton are especially 
important, because they definitely formulate views on 
" strict " and " loose " construction of the Constitution. Jefferson's 
Jefferson showed that the power to create a bank was not a^f^™^the 
among those expressly delegated to Congress. He argued bank. 
that a bank was not a " necessary and proper" means of Macdonaid 
carrying out the financial policy of that body, because it Documents, 
could get along without it; and finally, he declared that ^ 
if the national legislature could decide what means were 
" necessary and proper," it would invade the sphere of the 
states and destroy their rights. 

Hamilton just as unequivocally indorsed the doctrine of Hamilton on 
" impUed powers." He called attention to the fact that the ™^^^ 
states and the nation have different spheres of action, and 

, T^ . , „ . . .... Macdonaid, 

that the United States is sovereign withm its own sphere. 81-98. 

He claimed that "impHed" as well as "express" powers /q th d - 

were delegated, and showed that the use of an implied trine, see 

power to supplement an express power could not injure a Channing 

state if the object for which both were used was one not Guide, 4 159, 

reserved to the states. He further claimed that " the reia- and Story, 

Hon between the measure and the end, between the nature ^^^-^ 

of the mean employed toward the execution of a power, §§ 1242- 

and the object of that power, must be the criterion of con- ^^^S-) 
stitutionality, not the more or less of utility." 

Washington accepted the view of Hamilton and signed Doctrine of 

the bill. The legislative and executive departments were 'rnpiied pow- 

° '^ ers indorsed. 

thus finally committed to the doctrine of " implied powers," 
at least during the Federalist regime, and in 18 19, when 
discussing the constitutionality of the second United States 
bank, the Supreme Court accepted the same view (§ 168, 
see also § 325). 



124 



TJie American Federal State 



Foreign 
dependence. 

Mace, 

Method, 

158-164. 



Proclama- 
tion of 
Neutrality 

Macdonald, 
112-114. 



Disappear- 
ance of the 
Anti-federal- 
ists. 



Followers of 

Jefferson 

organize. 

Johnston, in 
Lalor, I, 769. 



150. Foreign Affairs. — On account of our isolation, for- 
eign affairs were much less important than they would have 
been had our immediate neighbors been powerful. Nev- 
ertheless, we were dependent upon Europe for so many- 
things that the danger of foreign complications and conse- 
quent European domination was very grave. We had been 
saved from French control in 1783 by the independent 
action of our peace commissioners. In the troublous 
" Napoleonic " times, which unfortunately coincided very 
nearly with the first quarter century of our constitutional 
history, greater difficulties were likely to come up. The 
first crisis was reached when the war between England and 
revolutionary France broke out. Though the country was 
divided into two great camps and feeling ran high, the bold 
and independent attitude of Washington in the Proclamation 
of Neutrality (1793) placed us outside of the sphere of 
European politics. Although this did not reheve us from 
some forms of European domination, it did more than any- 
thing else could have done to give us a high international 
position. The comparative failure of Jay's treaty with 
England (i 794), and the X. Y. Z. Mission in France (i 798), 
must be charged to the condition of Europe, and to the fact 
that we had not yet risen from the fourth rate nation of the 
Confederation to a first rate power. 

151. Formation of Parties: the Democratic-Republican. — 
It is very remarkable that the An ti- federalist party ceased to 
exist with the adoption of the Constitution. Those persons 
who had at first been opposed to the new government 
acquiesced in it, but, as a rule, favored the restriction of its 
power as much as possible. They naturally allied them- 
selves with the party that believed in the " strict " construc- 
tion of the Constitution. 

During the first terra of Washington there were no well- 
defined parties ; but the natural antagonism, personal and 
political, between Hamilton and Jefferson, caused the per- 
sonal following of those statesmen to take different sides on 
almost every question that came up. The controversy over 



Nationality and Colonialism 125 

the national bank may be said to have placed the parties 
on a definite footing, the followers of Jefferson holding to a 
"strict" construction of the Constitution, those of Hamil- 
ton to a "loose" construction, involving the use of "im- 
plied " powers. But in addition to their attitude toward the 
Constitution, the party of Jefferson, or the Democratic- 
Republicans, adopted the views of their leader on foreign 
and domestic questions. They wished to have the govern- 
ment show its sympathy with the French Republicans, and 
they believed that government should be as far as possible 
of the people as well as for the people. Since the state 
governments seemed to be closer to the people than the 
national government, they wished to restrict the central 
authority and strengthen that of the locahties. 

152. Federalist Party. — The Federalists disagreed in views of the 
every respect with the Democratic-RepubHcans. They be- Federalists. 
lieved not only in a strong national government, but thought 
success could be attained solely through government by the 
aristocracy, the "well born," and by alliance with the com- 
mercial classes, while to them democracy meant mob rule. 
The excesses of the French Revolution increased their ad- 
miration for the stability of the English system, so that a 
deep chasm separated the French and the English party. 

Undoubtedly party divisions have great disadvantages, and Benefits of 
were in a sense justly condemned by Washington in his P^"^'^^- 
Farewell Address ; but they have been absolutely necessary 
to our proper constitutional development, and have exercised 
the very greatest influence on our history. They have fixed 
the interests of the people on the government, have edu- 
cated and organized public sentiment, have carried out popu- 
lar wishes in the administration of government with little 
friction or disorder, and by the watchfulness of the " outs " 
have held the party in power responsible for all its acts. In 
doing this they have often resorted to vile abuse, have more 
than once pandered to popular prejudice or ignorance, and 
have aided materially in developing certain vicious political 
principles. 



126 



TJie American Federal State 



Anti-foreign 
laws of the 
Federalists 
(1798). 

Channing, 
^^208. 

Macdonald, 
Documents, 
137-148. 



The Republi- 
can protest. 

Channing, 
\ 209. 

Macdonald, 
14S-160. 



1 53. The Alien and Sedition Laws. — Although parties did 
not exist at first, the new government had been run from 
the beginning on Federahst principles, but the Democratic- 
Republicans had been gradually gaining ground. During 
the administration of Adams the bold stand of the Fed- 
eralists regarding foreign afiairs won for them such a measure 
of popular approval that they accepted the verdict of the 
elections as an indorsement of their whole policy. On this 
account they proceeded to apply their principles in their 
most extreme form. The result was the passage of three 
laws (1798), passed ostensibly to protect the country against 
foreigners, but quite as much for the purpose of silencing 
Federalist critics. The Naturalization Act required a resi- 
dence of fourteen years before a foreigner could become a 
citizen; the Alien Act gave the President power to expel 
aliens whom he considered dangerous to the community; 
and the Sedition Act provided penalties for those who 
defamed the government. The day had gone by when such 
arbitrary government would be peaceably accepted by the 
people. In the uproar that followed, the power of the na- 
tional authority must have been greatly weakened, perhaps 
injured beyond repair, had not the storm spent its force on 
the Federalist part}'. This had tAvo good results, — it assured 
the continued existence of the central government, and it 
made parties realize that they were the servants of the 
people. 

154. Virginia and Kentucky Resolutions (i 798-1799) . — 
Yet it had one influence that in the light of later history was 
unfortunate. The contest had been changed from one of 
government and people to one between the Federahsts and 
the Republicans by organizing the opposition to the Federal- 
ist policy. Jefferson and Madison believed they could do 
this most effectively by persuading the state legislatures to 
protest (1798) against the laws as in excess of the powers 
conferred upon the central government. These protests are 
commonly called the Virginia and Kentucky Resolutions. 
They declare that when the national government exceeds its 



Nationality and Colonialism 



127 



authority, the laws are of no effect ; and a later resolution 
(1799) from Kentucky stated that "nullification" was the 
" rightful remedy." Most of the other states disclaimed the 
right to interpret national laws, but the principle that a state 
could declare a law of Congress null and void grew till some 
sections believed that they should go further than a declara- 
tion and actually interfere with the execution of that law. 

155. The Revolution of 1800. — In the election of 1800 
the Federalists lost so much ground that the Democratic- 
Republicans had a clear majority in the electoral " college " ; 
but owing to the method then in use each elector voted for 
two persons, and the one that stood highest was declared 
President, while the one that stood second was Vice-presi- 
dent. For the first time the electors that year merely regis- 
tered the vote of their party ; but it happened that the vote 
was a tie, as Jefferson and Burr had seventy-three each. 
Jefferson was the real nominee of his party and should have 
been chosen at once, but according to the Constitution the 
decision was left to the House of Representatives. After a 
protracted contest in which the Federalists threw most of 
their strength to Burr, Jefferson was elected. Soon after 
a new amendment, the twelfth, was proposed so that the 
electors designated whether the vote was cast for President 
or Vice-president. 

The election of Jefferson was marked by many changes 
which were, in the opinion of that leader, sufficient to call 
the election a revolution. Class rule began to disappear. 
Republican simplicity was introduced ever^Tvhere. The 
inaugural presaged a wise and moderate rule with such 
alterations only as should give better and more popular 
government. The internal revenue system was gradually 
abolished, and the strong naval policy of Adams's adminis- 
tration gave place to the " gunboat " scheme. All monarchi- 
cal tendencies were checked, and a current was created in 
the opposite direction. 

156. The Purchase of Louisiana. — The first important 
question that came before Jefferson's administration was 



Nullification. 



The disputed 

presidential 
election. 

Stanwood, 
Presidency, 
54-73- 



Effect of the 
Revolution. 

Hart, Union, 
hh 94-97. 

Channing, 
k\ 223-226. 



128 



The American Federal State 



Events 
connected 
with the 
purchase. 



Upon 

construction 
of the 
Constitution, 

Walker, Na- 
tion, 180-184. 

Davis, S. M., 
in A. H. A. 

(1897), 
151-160. 



Upon the 
Federalists. 



that of Louisiana. DiiSculties over the navigation of the 
Mississippi had led to the appointment of commissioners to 
secure the purchase of the Isle d'Orleans so that we should 
control all of the east bank of the river. While we were 
negotiating for this strip there came from Napoleon an offer 
to sell all of Louisiana, which was most unexpected but 
gladly accepted by the commissioners, the President, and the 
people. As, however, doubts existed as to the constitution- 
ality of the purchase, Jefferson recommended a constitu- 
tional amendment authorizing the acquisition of territory. 
Before that could even be considered Louisiana came into 
our possession. 

157. Influence of the Purchase. — The influence of the 
purchase was very wide-reaching. Even though an amend- 
ment might legahze such acts, it could not make this par- 
ticular purchase constitutional. The party which had spent 
years developing a strict constructionist policy had made a 
more liberal use of impUed powers than their much abused 
predecessors. Strangely enough this breach with the past 
in no wise injured the party strength, for popular approval 
of the acquisition was so pronounced that the Republicans 
gained ground everywhere. Consequently, after 1803, strict 
construction could never mean the same that it had before. 

Upon the Federalists the purchase exerted fully as much 
influence. They had never recovered from the Alien and 
Sedition Acts, and from their unpatriotic action in the elec- 
tion of 1800. As the party out of power, their loose con- 
struction policy had lost most of its force, and was an injury 
rather than a benefit. The whole trend of society was away 
from their idea of class rule, and now by the adoption of a 
liberal interpretation of the Constitution the Republicans 
had taken all the wind out of their sails. Add to this the 
strenuous opposition to the purchase for narrow sectional 
reasons, and it is not surprising that the Federalists prac- 
tically disappeared. 

Only the future could reveal what the effect of the pur- 
chase would be on later history. There were many who 



Nationality and Colonialism 129 

thought our country too large for union without Louisiana, Upon the 
and believed that we would break up into a number of sec- ^'^'^^^ °5 

^ nationality, 

tions. In spite of the great system of navigable rivers democracy, 

permeating the Mississippi basin, it was a serious question ^'^^ slavery. 

whether the different parts of the country could be kept in 

touch with each other. The chief danger lay in imperfect 

communication, and in 1803 no means for greatly improved 

transportation had been devised. But if there was doubt as 

to the influence on nationality, there could be none along 

other lines. The most serious difficulties Hkely to arise from 

having a powerful neighbor at our very door were removed. 

The democratic movefnent which was making such progress 

in the West would have room to develop, and real popular 

government was assured as the West was now larger than the 

East. The field left open to slavery was increased, but only 

one vertex of the triangle was at the South while the North 

claimed two. 

158. Foreign Domination. — With the exception of the few Humiliation 
years during the Confederation the period of greatest im- of the nation, 
potence in foreign affairs occurred between 1805 and 181 1. 

The abnormal condition of Europe was, of course, largely 1/°^°?^^'^^' 
responsible for this foreign domination, for we could not Amer. Hist., 
separate ourselves from the war conditions which prevailed ^^ 288-295. 
elsewhere in the civilized world, and consequently had the Hart, Union, 
choice of submission to indignities or war. The administra- ?? ^°^ ^ 
tion of Jefferson tried to grapple with the problem by 
restraining American commerce in order to injure our 
foreign foes. To do this it was necessary to use national 
powers nowhere delegated. But embargoes and non-impor- 
tation acts injured us more than they did either England or 
France ; while we, duped by both powers, sank to the lowest 
depths of international degradation. 

159. Nationalist Reaction. — The humihation of our po- influence of 
sition appealed so strongly to the younger branch of the \^^^^.^° 
Republican party, that without fully comparing the insults nationality. 
we had received from both France and England they 

brought the government to declare war on the latter. The 



1^0 



The American Federal State 



Walker, 
Nation, 
chap. XIII. 



Inflaeace of 
tiie West in 
devekqping 
demociacj. 

Turner, F. J., 

in report of 

Hertxart 

SocietT, 

V, 10, aS-41. 



war itself was little better than a farce, as England was too 
much taken up with her contest on the continent to spare 
many war ships for America, but it was productive of many 
direct and many more indirect benefits. The indirect re- 
sults will be considered later. Of the direct results all were 
favorable to nationahty. (i) The people were so disgusted 
with the failures of the previous decade that they united 
in support of the national wing of the Repubhcan party. 
(2) The New England Federalists, whose opposition to 
the war was based on grounds excellent in themselves, but 
purely sectional, gave their p-^-rt}- its death blow wlien they 
seemed to be aiming at secession in the Hartford Conven- 
tion (1S14). (3) The humihation felt at the burning of 
Washington, and the joy over the victories of Pern-, Mac- 
donough, and J^ickson quickened in different ways the 
national pride. 

160. The Westward Movement. — During this quarter 
centary, from 1790 to 1S15, many of the evidences of colo- 
nialism in the states were swept away by the growing de- 
mocracy. The levelUng movement in societ)- and in politics 
"Avhich succeeded the Revolutionary War spent much of its 
force before 1789, and wotild have produced but few other 
radical changes had it not been for the new impulse given 
by the occupation of the West 

Frontier settlements are always un&vorable to social and 
other distinctions. In the great migrations that took place 
from England to the Atlantic coast most of the prominent 
class inequalities of the mother comitiy were left behind. 
The same tiling occurred when the country west of the 
ADeghanies was settied in the years following 1 7S0, for here 
erery one was on the same fix)ting from the first. These 
conditions so easily established were preserved largely for 
the sake of inducing others to come. Universal suffiage, 
lack of limitations on trade, abundant land, and a more 
real equality before the law went fer to compensate for the 
rough frontier life, so that immigration was large. Soon the 
older states, moved both by the spirit of the times and a 



Nationality and Colonialism 131 

desire to retain their inhabitants, began to modify their laws 
still more. The most important changes in the East came 
after 1815 ; but progress before that date was sure, even if 
not rapid. 

161. The State Constitutions. — The progress in the states Changes 
was registered by the constitutions. As it always required ^lenveen 1776 

' and 1815. 

considerable agitation to alter the flmdamental law of a 
commonwealth, and as our forefathers were politically more ^ °^'h" / 
conservative than we, it is readily seen that the three Western I, 263-266. 
states could not at once raise the poUtical level of the whole. j^icMaster 
Between 1776 and 1790 seventeen new constitutions were United states, 
adopted besides the adaptation of the charters of Rhode ' ^^~^ ' 
Island and Connecticut. Between 1791 and 1815 there were 
but nine, of which only two were in the original thirteen 
states. Of course, as the constitutions were brief and 
touched upon few details, many matters might be changed 
by statute which would now find a place in the constitutions ; 
yet as the most important subjects were regulated by con- 
stitutional law, this accounts for the few extensions of the 
firanchise and for the failure of the democratic movement to 
alter state institutions, or to leave a lasting impression upon 
anything but the statute law. Some progress, however, had 
been made through the constitutional amendments, some 
of which had aboUshed state aid to church institutions and 
rehgious qualifications for office. 

QUESTIONS AND REFERENCES 
The National Era (§§ 139-141) 

1. Compare the degree of nationality in 1790 and to-day by show- 
ing the difference in power of the central government, and the feeling 
of the people toward matters of common interest. 

2. Show how state laws and customs have become more uniform. 

3. '\\Tiat are periods of histor}-? ^^^lat is the exact use of dates in 
marking the beginning and close of such periods? Would our periods 
of United States history be the same if we were studpng social history, 
industrial history, mihtary history, Uterary history? Can you suggest 
limits for periods in these cases? 



132 llie American Federal State 

4. Has human progress the last few centuries favored nationality 
and centralization? Prove. Which century has aided in this move- 
ment most? why? 

Organization of the Government (§§ 142-145) 

1. Show what features of the new governmental organization were 
distinctively English. Did they tend to become more or less so? 

2. What is the difference between the English and the American 
ideas of a cabinet? Has the lack of constitutional provision regarding 
executive officers been a help or a hinderance? What was the most 
important executive department and why? 

3. What precedents do you find for the Supreme Court as to organi- 
zation, jurisdiction, or methods? 

Questions of Policy (§§ 146-150) 

a. Different views of Hamilton's policy are given by Lodge in his 
Hamilton, 84-135, and in Sumner's Hamilton, 144-199. 

1. Did Hamilton fail to secure any one of the objects he sought? 
Give an estimate of the influence of his financial measures upon the 
national government. 

2. To what extent have we followed Hamilton's policy in our his- 
tory? Which taxes proposed by him do we have now? 

3. Should the difference in amount between the Northern and 
Southern state debts have affected the payment? Was assumption 
necessary? was it constitutional? was it wise? 

4. What is the difference between strict construction in 1793 and 
now? Could the constitution have survived without the use of "im- 
plied powers " ? 

5. Make a brief outline of French history from 1789 to 1802. Was 
the Proclamation the right or merely the safe course? Does our con- 
duct of foreign affairs before 181 5 show a colonial dependence on 
Europe or the contrary? 

PoUtical Parties (§§ 151-154) 

a. On the Alien and Sedition Laws, cf. Johnston, in Lalor, I, 56-58; 
with Ford, Amer. Politics, 109-114. 

b. For further information on the Virginia and Kentucky Resolu- 
tions, see Johnston, in Lalor, II, 672-677; Ford, ibid., 1 14-120; Von 
Hoist, Const' I Hist., I, 142-167. 

I. What is necessary that we may have parties? Would it be desir- 



Nationality and Colonialism 133 

able to dispense with national parties if it were possible ? Explain your 
answer. 

2. To what extent did personal feelings enter into the formation of 
the first parties? to what extent French issues? constitutional questions? 

3. In what particulars did each party represent the past? the future? 

4. In what respects did the Alien and Sedition Acts fail to conform 
to republican principles? 

5. Did nullification mean the same in 1798, in 1814, in 1828? 
State clearly all differences. What truth is there in the doctrine? 
what error? 

6. Give all the reasons you can why the Federalist party went to 
pieces after 1800. What part of the work was of permanent value? 
Was there a " revolution of 1800 " ? Give your reasons in full. 



Republican Supremacy (§§ 155-161) 

a. Look up the embargo in Channing, §§ 235-237; Schouler, United 
States, II, 178-199; Von Hoist, Const I Hist., I, 200-216; Johnston, in 
Lalor, II, 80-84. 

1. Show the part played by the navigation of the Mississippi in our 
history before 1803. What were the boundaries of Louisiana purchase? 

2. Was the purchase of Louisiana constitutional? 

3. If you had been living in 1803, and knew nothing of our later 
history, what would have appeared to you as the advantages of the 
purchase? its disadvantages? Consider its effect on the whole coun- 
try, or sections, on the powers of the central government, as a means 
of perfecting or injuring union, upon future policies, etc. 

4. OutUne European history from 1802 to 1815. "VMiy were the 
British Orders in Council and French decrees issued? Was the 
embargo a greater injury to America or to Europe? 

5. What objections did New England offer to the war? What was 
the purpose of the Hartford Convention? What constitutional amend- 
ments were proposed by it? Did it favor nullification? secession? 

6. Name all of the events from 1789 to 1815 which showed a 
dependence on Europe. Summarize all changes in social, political, 
and economic conditions during that period. 



CHAPTER VII 

NATIONALITY AND DEMOCRACY (1815-1845) 
General References 

Johnston, American Politics, chaps. IX-XV. 

Channing, Student's History, 367-442. 

Hart, Formation of the Union, 223-262 (to 1829). 

^Yikon, Dizision and/reunion, I-I15 (from 1S29). This is the third 
volume of the Epochs of American History. It is a little more 
discursive than Hart's Formation of the Union, but an excellent 
account. 

Burgess, Middle Period, I-2SS. A scholarly book devoted to the politi- 
cal and coi^tutional histor}- connected with the national gov- 
ernment. 

Stanwood, History of the Presidency, 106-225. 

Ford, Rise and Growth of American Politics, 130-216. 

Benton, Thirty Years' View. 

Von Hoist, Constitutional History, I, 302-II, 466. 

Schouler, United States, III-IV. 

McMaster, United States, IV-V (to 1S25). Volume V gives quite a 
little information on democracy. 

Thorpe, ConSiiiution<.iI History. 2 volumes. The best book on democ- 
racy and constitutional development in the states. 

De Tocqueville, Democracy in ike United States (1831). A philo- 
sophical description of political institutions and of political and 
social conditions. Very valuable, 

Qeveland, Growth of Democracy, parts of chaps. "\TII-XIV. Ex- 
cellent for reference. 

The following from the American Statesmen Series deal with this 
period : Svunner 5 Jackson, Oilman's Mcnroe, Morse's f. Q. Adams, 
Schnrz's Clay, Lodge's U'ehter, Von Hoist's Calhoun, Magmder's 
Marshall, Shepard's I'an Buren, McLaughlin's Cass. 

In the American CommamiiealA Series, Carr's Missouri, Cooley's 
Michigan, Browne's Marylamd, and Robert's Xem York deal with 
certain impcHtant phases. 

Lamed, History frr Ready Reference. 



Natiofiality and Democracy 135 

Lalor's Cyclopedia, articles by Johnston on Controversies, Tariff, Nul- 
lification, Bank Controversies, Judiciar)', Compromises, IV: by 
Koerner on Monroe Doctrine, and Knox on Banking in the 
United States. 

162. The Movement toward Democracy. — Before 1815 the impetus 
way had been fully prepared for the development of both fi'^^j^'i*!^ 
nationality and democracy, and in the period following the 

war both advanced with tremendous strides. The war had 
done two things : it had produced a new set of conditions, 
and it had awakened a new spirit in the people. The activi- 
ties of all kinds following the treat}' of Ghent (18 14) were 
in marked contrast with the comparative stagnation preced- 
ing it. Perhaps the most fateful of the new movements was 
the rapid expansion of the West. Immigration was large, 
and the territories were rapidly prepared for statehood. 
Fully abreast with the advanced ideas of the times, the 
new constitutions were an influence felt all over the coun- 
try. The East, infused with new life, adopted a series of 
constitutions that showed the progress democracy had 
made. Little by little the democratic wave removed the 
survivals of colonialism. The national and the state govern- 
ments were transformed, if in any v^'ay they failed to respond 
to democracy ; new political methods were introduced, and 
different ideas gained ground. The wave reached its height 
about 1840 in the West, and a little later in the East. It 
then gradually began to subside as people came to realize 
that after all democracy was not the panacea for all political 
ills. But with all its faults, democracy had taught many 
lessons in the art of self-government, and proved a great 
aid in the development of nationality. 

163. Economic Changes. — During the early part of the Conditions 
centurv, machiner%' had begun to take the place of hand f^^'oi'abie to 

'. - * ^ mdustiy. 

labor m the production of the world's products. The 
change from the old or house plan to the new or factor}' 
system began in the United States about 18 10. Soon after 
the blockade of our coasts by British war vessels made it 
necessary to manufacture what we had formerly imported. 



136 



The American Federal State 



Tariff of 

I8I6. 

Burgess, 
Middle 
Period, 8-13. 



Creation of 
tlie second 
national 
bank. 

Burgess, 
ibtd., 3-8. 

Johnston, in 
Lalor, I, 
201-204. 



Army and 
navy reor- 
ganization. 

Burgess, 
ibid., 13-14. 

Settlement 
of the West. 



As our wax with England ended about the time Napoleon 
was finally expelled from Europe, and as the return to peace 
conditions was followed by ver}' great production in England, 
we found our markets flooded with goods imported from 
abroad. In order to keep our infant industries from being 
overwhelmed, it was necessary to place restrictions upon 
competing goods, by the estabhshment of a higher tariff^ 
based on the principle of protection. It is indicative of the 
national sentiment of the people that the vote on the tariff 
of 1 8 16 was not sectional, and that strong support of the 
measure came from the South and West. 

164. The United States Bank. — It must be taken into 
account that this tariff was passed by the Republican party, 
now the only one in existence. How far they had deserted 
their old principles may be seen by other nationalistic meas- 
ures. The charter creating the bank of 1 791 had expired in 
1 81 1, and the bill to recharter it was defeated by a very close 
vote in both houses ; but the failure of the favorite republi- 
can devices to meet the demands for money placed the 
finances of the countr}-^ in a very bad condition. To assist 
the government in its difficulty, as well as to bring order out 
of the financial chaos, a new bank much stronger and more 
national, withal more democratic than the first one, was pro- 
posed. The bill creating this was passed without serious 
opposition. 

About the same time the army and navy were reorganized 
on a peace footing, and in both cases the party gave up its 
former opposition to a strong military and naval policy by 
making them much more efficient than even under the Fed- 
eralists. 

165. The Westward Movement and Internal Improvements. 
— The extent of the migration to the West may be judged 
from the growth of population in that section. In 1810 
Ohio had 230,760 inhabitants; in 1820, 581,295. Indiana's 
population increased during the same decade from 24,520 to 
147,178; Ilhnois's from 12,282 to 55,162; Alabama's from 
about 20,000 to 127,901, and others in the same propor- 



Nationality and Democracy 137 

tion. During the six years following the war, six states were 
admitted, all but Maine being in the West. 

This movement was not entirely unaided by the national internal im- 
govemment which sought to unite the East to the West bv P^ovem^ts 

11 1 1 » 1 • ■ 1 ■ ' by national 

national roads and canals. A begmnmg was made m 1S06 government, 
when money was appropriated for the Cumberland Road, 

1 1 1 / « o V %^ ,1 • , , ■ ,- Hart, Union, 

though when (1808) Gallatm suggested his famous scheme jj 121,136. 
of many canals but httle had been done, owing to the failure 
of the surplus. An attempt was now made (1816) to cre- 
ate a permanent fund for internal improvements, but failed__ 
through the veto of President Madison, who doubted its 
constitutionahty. Although much was done later, the oppor- 
tunity was thus lost to strengthen the national government, 
and the states were left the construction of the great high- 
ways which were invaluable before the advent of the railway. 

166. The Missouri Compromises. — At the first there had Slavery and 
been opposition to the admission of new states, based on ^*^*^ 

,. . ,. „ -11, 1 . admission 

sectionahsm or prejudice. Suggestions had been made in before 1820. 
the Convention of 17S7 that the new states should never 
outnumber the old ones, but happily it found no favor. In 
1803 the acquisition of Louisiana territor}-, and in 181 2 the 
admission of the state of the same name, were the occasions 
for threats of secession from New England. But after 181 5 
the old grounds for opposition disappeared, and the only 
important issue involved in state admission was that of 
slavery. Care had been taken to keep a balance between 
the slave and the free states before that time, but it became 
much more prominent with the increased westward migra- 
tion. The importance attached to slavery as an issue in The Com- 
state admission was clearly brought out in the debate on the P"""™^^^- 
petition from Missouri to enter the Union (1818-1S20). Johi'ston. in 

™ 1, 1 . . Lalor, I, 

Tallmadge's amendment to the bill for admission in favor 549-552. 
of gradual emancipation was the signal for batde. As the Macdonaid 
South was more united in its action than the North, the Documents, 
South was able to control the Senate, but the three-fifths ^^^~^ ' 
provision left it hopelessly in the minority in the House. Y°° ^°'3 

^ "^ ^ Const I Htst., 

After the greater part of two sessions of Congress had been 356-381 



138 



The American Federal State 



Burgess, 
Middle 
Period, 
61-103. 



Conflict 
between 
nationality 
and slavery 
postponed. 

Cf. Burgess, 
ibid., 103- 
107. 



Its influence 
in developing 
nationality. 

Hart, Union, 

Channing 
and Hart, 
Guide, § 175. 



taken up over discussions, the deadlock was broken^ljy the 
compromise that Missouri should be admitted as a slave 
state with Maine as a free state, while slavery should be 
"forever prohibited" in other parts of Louisiana territory 
north of 36° 30'. A second compromise (1821) permitted 
the entrance into the state of free negroes who were citizens 
of any other state. 

167. Effect of the Compromises. — These compromises 
settled temporarily at least two points of the highest impor- 1 
tance : one dealing with constitutional law, the other with 
political history. First, it was decided that after a state 
asked for admission Congress could not impose upon it any 
important condition, but must allow it to decide for itself 
what its attitude should be on all subjects with which the 
national government could not afterward interfere within its 
limits. Second, the contest between nationality and slavery 
was postponed thirty years, much to the advantage of the 
former, which was steadily gaining ground. How effectual 
the settlement of the question was considered is apparent 
from the fact that parties were not created by the different 
opinions on the issue of slavery. Thoughtful men, however, 
realized that in this sectionalism was the great danger to the 
Union, but believed that while sectionahsm would continue 
to exist, the 36° 30' compromise had made conflict between 
it and nationaUty impossible. The great gain to the central 
government came from the clearer definition of its power to 
control the public territory which was expressly stated by all 
of Monroe's cabinet and universally admitted. 

168. The Supreme Court. — The influence of the Supreme 
Court in developing the power of the national government 
at this time can hardly be overestimated. The court had 
adopted a moderate tone, had distinctly excluded political 
questions as such from its jurisdiction, and had won general 
approval by its fairness (§ 381). It was quick to take 
advantage of the national spirit produced by the war, and 
to make that spirit a permanent force in the central govern- 
ment. Beginning with 18 16 a series of important decisions 



Nationality and Democracy 



139 



was rendered especially by Chief Justice Marshall and Jus- 
tice Story. Two of these in 1816 and 1821 made good the 
claim of the court to try on appeal cases begun in state 
courts but involving national law, even when the state pro- 
tested against this use of appellate jurisdiction by the 
Supreme Court. In McCulloch v. Maryland (1819) Mar- 
shall sustained the constitutionality of the national bank and 
denied the right of state to tax one of its branches. In 
doing this he said that the laws of the United States were 
supreme within their sphere, and that if a power was dele- 
gated to the United States government, it might select what 
means it considered best in the performance of its duty. 
The same year in the Dartmouth College Case the clause 
prohibiting the states from passing laws impairing the obHga- 
tion of contracts was held to apply to the alteration of char- 
ters granted by the states. These and other decisions of 
similar character made it possible for the central govern- 
ment to use its granted powers with greater eifect, and acted 
as a check on the states. The decisions caused consider- 
able opposition, but their enforcement was not successfully 
resisted till the famous Cho-okee Case in 183 1 (§ 176). 

169. Foreign Affairs. — When John Quincy Adams became 
Secretary of State in 181 7, our foreign relations began to 
feel the effect of the bolder attitude of the people. The 
most famous instance of the new policy is embodied in 
what is known as the " Monroe Doctrine." In the years 
following Waterloo the principal monarchies of Europe had 
formed the Holy Alliance for the suppression of republican 
doctrines within their own borders and in other states. 
When they sought to apply their reactionary principles to 
the revolted Spanish-American states. Canning, the prime 
minister of Great Britain, asked the support of the United 
States in a protest against this course. After due delibera- 
tion it was refused, but Monroe in his message to Congress 
(December, 1823) stated that we intended to take no part 
in the affairs of European states, and that we should look 
upon " any attempt on their part to extend their system to 



The Monroe 
Doctrine. 

Hart, Union, 
\\ 128, 129. 

Koerner, 
in Lalor, II, 
898-9CO. 

Macdonald, 
Documents, 

2.7.Z-2.2P. 



I40 



The American Federal State 



Extension of 
the franchise. 

McMaster, 
United 
States, V, 
380-394, 

Schouler, 
Const'l 
Studies, 231- 
248. 



Other demo- 
cratic ten- 
dencies. 



any portion of this hemisphere as dangerous to our peace 
and safety." He further declared that we should not inter- 
fere with any other colonies, but that we should consider 
any effort to reconquer the South American states " as the 
manifestation of an unfriendly disposition toward the United 
States." This is, of course, in no respect a principle of 
international law. It is a statement of American poUcy, 
which was not at that time construed as placing upon us 
any obligation for the acts of our Southern neighbors. 

170. Democracy in the States (1815-1830). — Meanwhile 
a majority of the states had been adopting new constitu- 
tions. Those of the states in the Northwest were more 
democratic than the others. They had no quaUfications for 
voters except residence, and required a much briefer resi- 
dence for state officials than the East or South. The new 
Southern states had a liberal franchise, but demanded prop- 
erty quaHfications of governors and assemblymen. Among 
the older states, Maryland had aboUshed property qualifica- 
tions for voters in 18 10, and practically all the others limited 
it to a nominal sum or required only payment of taxes. In 
its new constitution, New York gave the suffrage (1821) to 
free negroes, but only in case they owned property. We 
may judge of the changes in the franchise by comparing 
the proportion of voters in 1800 with that of 1830. In 
1800 it is estimated that one hundred and fifty thousand 
men could vote, or one voter to every thirty-five inhabitants. 
In 1830 the number of possible voters was over a miUion 
and a quarter, or about one in ten. 

The final separation of Church and State took place in 
New England, beginning with Connecticut in 181 8 and end- 
ing with Massachusetts in 1833. 

Several other important tendencies are observable between 
1815 and 1830, due to the influence of democracy. The 
constitutions are becoming larger and more detailed, requir- 
ing more frequent revision. The appointment of officials is 
giving way to elections for short terms. Officials are paid 
more in money and less in the dignity of their positions. 



Nationality and Democracy 141 

Bills of rights are taken as a matter of course, more atten- 
tion being paid to applying them in laws, and finally the 
states are trying new experiments in legislation, in internal 
improvements, in banking, and even in loaning money to 
the agricultural classes. 

171. Party Changes (1820-1845). — As the nation after Separation 
1820 tended to sink back into the old ruts of particularism, ?f *^ 

•^ ' Democraiic- 

the majority of the only poHtical party in existence returned Republicans 
to a Uttle stricter construction of the Constitution. This ^"'° ^ ^°^' 

1 11 - , . . , servative 

attitude was so unacceptable to a powerful mmority that, and a liberal 

under the lead of Clay, they gradually united to form a new wing, 

party called at first National Republicans, and afterward Wilson, 

Whigs. Their cardinal doctrines were internal improve- ■^*^"""* '^'"^ 

.,,-,, Reunion, 

ments and protection, both of which they beheved to be \\ 9, 10, 55. 
authorized by the Constitution. Their greatest strength lay Johnston in 
in the Northeast, which was the manufacturing district ; and Laior, ill, 
in the Northwest, which looked to the national government i°°^-i°°S- 
for aid in developing its territory. As the states began to 
spend more on roads and canals, and as later the raihoads 
made pubHc expenditures for such purposes less necessary, 
the Whigs lost ground in the West and were able to carry 
that section only through the personal popularity of their 
Western leaders. In consequence, the Whigs never obtained 
complete control of all departments of the government, and 
seldom had a majority in Congress. 

172. New Political Methods: Convention System. — We a democratic 

should naturally expect to find democracy introducing many system of 

•^ . T • , J nommation. 

radical changes in the methods used to gain political ends, 

and such is the case. Not satisfied with being able to pass a Laior 1°' "^ 

final decision on men and measures at the polls, it demanded 1040. 

the initiative in pohtical affairs. In doing this a system of stanwood, 

nominating conventions came into use. Formerly the poll- Presidency, 

ticians already in power had been in the habit of holding a ^^' 

caucus for the nomination of its candidates, and this was ^°\^' ^'"^''* 

, ,. r Politics, 

simply political class rule. But as the party out of power chap. XVI. 
could not do this because it had so few representatives in 
Congress or the legislature, "outs" or new parties became 



142 



The American Federal State 



Dallinger, 

Nomination 
for Elective 
Office, 13-45. 



The cam- 
paign and 
the party 
" machine." 

Ford, Amer. 

Politics, 

144-149. 



New popular 
interest in 
the chief 
executive. 

Mace, 

Manual, 

192-196. 

Ford, Amer. 
Politics, 
chap. XV. 



accustomed to having delegates chosen from different coun- 
ties to state conventions. In 1831 the Anti- masonic move- 
ment, seeking to perfect its organization, held a national 
convention. The example was quickly followed by the great 
parties, which, in many cases, adopted resolutions stating 
their policy. The latter in time grew into the platform, now 
an indispensable part of the work of a national convention. 

173. Other Methods. — As each party was bidding for 
popular support, every effort was made to obtain votes. 
Two of the most important methods introduced were the 
campaign and machine organization. In the first, voters 
were to be attracted by the popular love of display and by 
"stump speaking." The later presidential elections of 1840 
and 1844 were the best examples of this. Even more 
reliance was placed on more perfect party organization. 
The " machine " was not a new thing, for Tammany Hall 
had used methods hke those of the present many times 
since it was formed in 1 789, but now the party " boss " 
became a recognized power in political circles, while federal 
and state patronage were used to control votes. Bribery 
was more frequently used, and the wretched system of the 
open ballot boxes made intimidation of voters and " stuffing " 
of the boxes not only possible, but quite common. The 
political products of democracy were as yet of the crudest 
kind, and it required years to sift out the good and to 
reject the less perfect. 

174. The Presidency made Democratic. — Strange as it 
may seem to us now, the presidential elections before 1824 
were attended with little excitement or even interest. So 
accustomed had the people become to having their chief 
magistrate selected for them that they made no effort to 
overthrow the "Virginia dynasty" and the custom by which 
the former Secretary of State became President. Such a 
system would do very well for England or the United States 
as long as it was satisfied with colonialism, but democracy 
demanded that the President be its representative. The 
change from the old method to the new may be illustrated 



Nationality and De^nocracy 143 

by comparing the elections of 1820 and 1828. In 1820 
there was no opposition to President Monroe in spite of the 
tremendous agitation over the Missouri question, and the 
vote polled in some states was absurdly light. In 1828 
Jackson had been nominated by the people through the 
legislatures, as the convention had not yet been devised for 
the purpose. The vote was incomparably greater than in 
1820, and much more than double that of 1824. In later 
elections the democratic influences were the predominant 
ones both in choosing the leader and in deciding the 
election. 

175. Results of the Change in the Executive. — The trans- President 
formation of the presidency by bringing the President close ^^'"^ '" 
to the people had two important results. In the first place 

it greatly increased the power of the executive. Our chief Manual ' 
magistrate is not a very powerful official in time of peace, 196-201. 
and the influence exerted by Washington and Jefferson had 
been entirely lost by their successors. Jackson, relying on 
popular support, restored both the power and the influence 
of the President. He used the veto fearlessly, met Con- 
gress squarely on the issue of the bank, and then appealed 
to the masses to justify his actions. In other matters he 
acted with vigor if not with skill. To him not precedent 
but the wishes of the people determined the constitution- 
ality of national law and of executive action. 

In the second place, democracy introduced into the na- The spoils 
tional government its favorite plan of short terms and rota- ^y^'^"^- 
tion in office ; in short, representation of the people in the Wilson, 
administration of affairs. This quickly degenerated into the j^gunion 
" spoils system, " which has done so much to render all of \\ 14-19- 
our governments inefficient. Yet it was not only the legiti- 
mate but the necessary product of democracy. 

176. The Cherokee Case. — Two of the most important Practical 
political questions affecting nationality that came up between "" ' cation. 
1830 and 1840 dealt directly with the doctrine of nullifica- Von Hoist, 
tion. The first of these originated in an effort of the state ** 



of Georgia to control the lands of the Indian tribes within 



1, 452-458. 



144 The American Federal State 

Burgess, its borders. During the controversy the legislature passed 
Middle ^ jg^^ extending the jurisdiction of the state over the terri- 

2I0-220. tory occupied by the Cherokees. The Cherokees at length 

appealed to the Supreme Court of the United States, but 
the writs of error addressed by the court to the state re- 
quiring the government of Georgia to show cause why cer- 
tain persons should not be released, were completely ignored. 
Late in 1831, in the case of Worcester v. Georgia, the court 
declared the Georgia law just mentioned to be null and void. 
Nevertheless, the state proceeded to enforce the law while 
President Jackson, whose sympathies were naturally not 
with the Indians, but who was legally bound to execute 
the decree of the court, refused to interfere, declaring, it is 
said, " John Marshall has pronounced his judgment, let him 
enforce it if he can." This actual nuUification by a state 
of the national law did much to counteract the nationalism 
created by previous decisions of the court. Upon the court 
itself its effect was wide-reaching, and with the death of 
Marshall in 1835, and the increased number of judges in 
1837, democracy united with states rights to greatly weaken 
the judiciary. 
Protest 177. Nullification of the Tariff. — The results of the tariff 

against tariffs pf i8i6 were disappointing to the South: and as cotton 

before 1832. . , , rr & ) 

occupied a less important place in those of 1824 and 1828, 
Middle' many of the Southern states, especially South CaroHna, felt 
Period, themselves distinctly aggrieved by these "sectional laws." 

170-182. Yiye legislatures protested against the tariff of 1828, and 

South Carolina adopted Calhoun's " Exposition " declaring 
that the states because of their sovereignty had the right to 
veto national laws, and to interpose in order that the central 
government should be forced "to abandon an unconstitu- 
tional power." 
Nullification As the tariff of 1832 did not remedy the defects pointed 
by South Q^^ ^y South Carolina, that state immediately met in con- 

Carolina. ^ ' 



vention and declared the tariffs of 1828 and 1832 null and 
Manual void, giving an elaborate argument for the stand taken, and 

211-214. prohibited the payment of duties after February i, 1833. 



Natiofiality a7id Democracy 145 

Jackson disliked the South Carolina leaders as much as he Wilson, 

did the Indians, and assumed an uncompromising attitude. ^^"^'^^^^ °'^'^ 

He declared that the object of the nuUifiers was disunion, §§30,31,33. 

and prepared to enforce the laws ; but rather than risk a j^jj^ston in 

conflict, Congress passed a tariff that was avowedly non- Lalor, II, 

protectionist, and South Carolina repealed its nullification 1050-1055. 
ordinance (1833). It may be questioned whether the state 
had not made good its claim to nulUfy a law of all the states 
by armed interposition. 

178. Other Political Questions. — While nullification was TheWeb- 
trying to oppose the growth of national influence by an ster-Hayne 
assertion of state rights, the people were given clearer ideas 

of the character and significance of the claims of national ^ j^°"'"^' 
and state sovereignty in the Webster-Havne debate (1830). 

1 . . , '. Wilson, z"^/^.. 

Owing to the conditions existing at the time, the represen- ^ j 23, 24. 
tative of New England deserted the old anti-national posi- 
tion of 1803, 1806, and 1814, coming out squarely for the 
national theory of the Constitution, which his arguments did 
much to impress upon the country, especially the North. 
On the other hand, HajTie now stood for the doctrine of the 
past, and did much to identify the cause of the South with 
the idea of state sovereignty and its necessary corollar}' of a 
compact between the states. 

Although the United States Bank was the most national The United 
institution of its day, the opposition of Jackson, which in the ^*^^^^ -^^^^ 
end destroyed it, was based not on the fact that it was Wilson, /^ii/., 
national, but that it was an ti- democratic. Yet his action re- 
garding the bank helped democracy less than it injured ^!^^^P' 
nationaUty. In the placing of the deposits with state banks, period, 
and in the distribution of the surplus Jackson undoubtedly chaps, ix, 
weakened national authority, as the expenditure of the same 
sums directly by the central government would not only have 
given it prestige, but would have led to a fuller and better 
use of the " implied " powers than were involved in many 
cases where he exercised his personal authority. 

179. Influences Favorable to Nationality : the New States. 
— It is interesting to notice that so far in our history, except 



146 



The Americaii Federal State 



Attitude of 
the West 
toward the 
national 
government. 

Thorpe, 
Const' I Hist., 
I, 264-266. 



Foreigners 
favored the 
nation rather 
than the 
states. 



in the disputes arising over the navigation of the Mississippi 
River, all of the tendencies toward disunion and most of 
those favorable to state sovereignty came from the older 
commonwealths. The reason for this is evident. The old 
states looked upon the Union as their creation ; the new ones 
as their creator. Nearly all of the territory formed into 
states after 1789 had at some time been under the absolute 
control of the national government. When these new states 
were admitted to the Union, the old states apparently had 
nothing to do with it ; Congress passed the enabling act, 
Congress imposed conditions, if such there were. They had 
no local traditions, no revolutionary claim to sovereignty, 
no institutions productive of either particularism or section- 
alism. They favored a strong national government for for- 
eign affairs and for internal improvements, and only in the 
few matters directly antagonistic to their interests did they 
disapprove of national authority. 

180. Foreign Immigration. — While the interstate migra- 
tions were breaking down commonwealth lines in the West, 
the influx of immigrants from all parts of Europe, espe- 
cially Great Britain and Germany, was strengthening the na- 
tional sentiment everywhere. They cared nothing for the 
states — they had transferred their allegiance to the United 
States. Their influence began to be felt as early as 1840, 
but it was only after the great migration following 1848 that 
they became a positive force in this country. On account 
of slavery in the South, these immigrants avoided competi- 
tion with this form of labor, and with few exceptions settled 
in the North. As they were industrious and thrifty, they 
increased for that section its very decided advantages in 
population, wealth, and productive power. Had it been 
impossible for the United States to assimilate so large a 
body of foreigners, they would have retained all their old 
national characteristics of race, language, and customs, — 
but this was nowhere the case, — and even if the first gen- 
eration failed to become truly American, it was never so 
with the second. Directly and indirectly they were there- 



Nationality and Democracy 



147 



fore a great help in developing a national sentiment in the 
North. 

181. Improved Means of Communication. — It is not too 
much to say that no larger representative state can continue 
to exist with poor means of communication. The invention 
of the steamboat had helped to solve the problem of com- 
munication in the West, but the railway has been a much 
greater unifying factor in our history. It not only has 
enabled persons to travel with rapidity and ease, but it has 
created channels for trade which has done much to obliterate 
state Hnes in commerce. It has so cheapened the cost 
of marketing products as almost to revolutionize industry. 
The first railways were built just before Jackson's inaugura- 
tion, and by 1840 nearly three thousand miles of line had 
been completed. From that time on progress was rapid. 
Following in its steps was the telegraph, which was to bring 
the remotest parts of the country into immediate communi- 
cation. With these material advantages it was impossible 
for separateness and sectionalism to thrive. 

182. Phases of Later Democratic Development (1830- 
1860). — After 1830 democracy continued to develop, 
though perhaps less rapidly than in the preceding decade. 
Its growth did not cease with 1845, has not in fact ceased 
yet, but after that date it was overshadowed by the conflict 
concerning slavery. The attempt is made in the following 
paragraphs to show some of the results reached between 
the inaugurations of Jackson and Lincoln. It will be noticed 
that almost all of these belong to the sphere of the states. 

183. Changes in the State Constitutions after 1830. — Dur- 
ing the period from 1830 to i860 new constitutions were 
constantly being adopted at the rate of about one a year, 
and the new constitution of any state was affected almost as 
much by those recently made by its neighbors as by the one 
previously in use in that particular state. Practically all of 
these were proposed by conventions called for the purpose, 
and were ratified by popular vote. The influence of democ- 
racy is observable along several lines. The constitutions 



State lines 
disappearing 
in commerce. 



Slavery be- 
comes the 
important 
question. 



Constitutions 
continue to 
grow demo- 
cratic. 

Thorpe, 
Const' I Hist., 

395-435 (esp. 
419-422), 

445- 446. 



14S 



The American Federal State 



The gover- 
nor. 

Schouler, 
Const I 
Studies, zGj- 
282. 



The legisla- 
ture ; compo- 
sition. 

Schouler, 
Const 'I 
Studies, 249- 
265. 

Thorpe, 
Const' I Hist., 
408-416. 



Changes in 

legislative 

powers. 

Thorpe, 
ibid., 11,416- 
418. 



left less to the discretion of the legislature, and laws that 
were formerly enacted by that body were now placed in the 
Constitution, which becomes more like a code of laws. 
Changes were made in both the central and local govern- 
ments, which gave the people a better control over the whole 
system. New constitutional laws recognized the fact that the 
state must give greater legal rights to its weaker classes, and 
provide for the education of its youth and the care of its 
unfortunates. 

184. The State Executive and Legislative Branches. — 
Most of the eighteenth-century governors and their assist- 
ants were chosen by legislatures. Before 1830 the practice 
had become universal to have the governor elected by the 
people, but the secretaries of state and other administrative 
officials were still chosen as before. As democracy was 
naturally opposed to the appointive system, practically all 
of these assistants of the governor in time came to be 
selected by the people. 

In the composition and in the powers of the legislatures, 
democracy produced significant changes. During the early 
part of the century the members of the upper house usually 
represented counties and those of the lower towns, but in 
neither house was the apportionment really based upon 
population. After many experiments and hard fought con- 
tests between the cities and the country, they began to 
divide the states into districts as equal as possible in popu- 
lation, but it was not until after 1850 that the states finally 
abandoned the old system and adopted the new and more 
democratic one. 

Not willing to trust even its own representatives, democ- 
racy introduced into the new constitutions provisions which 
made special legislation impossible in certain enumerated 
cases, and forbade all legislation on certain subjects. But 
it went farther and compelled the legislatures to pass laws 
and appropriate money to carry out certain provisions of 
the Constitution. This decline of the legislature in impor- 
tance gradually led to the adoption of biennial sessions, at 



Nationality and Democracy 149 

first of unlimited duration, but later restricted to ninety, 
sixty, or even forty days. 

185. The Judiciary. — The judiciary did not escape the Popular 
general movement which made appointive offices elective ^'^<=tion and 
and shortened the terms of the officials. Before 1800 all duced. 

of the states appointed all judges, state or local, and allowed j. 
them to hold office during good behavior. The first judges Laior, 11, 
to be elected by the people were the justices of the peace, ^43-645- 
who were either township or county officials, formerly Schouler, 
appointed by the state governor. In 1802 Ohio placed LV'*^" 
their election in the hands of the voters in the district over 
which the justice had jurisdiction. The rest of the North- ibid.,\\,axz- 
west did the same as it became settled ; but the South was 476- 
even slower than the East in adopting this plan. Yet 
strangely enough it was Georgia that in 18 18 first had her 
state judges chosen by popular vote, and the South was the 
first to follow her example. In time most of the states, 
except those in conservative New England or some parts of 
the South, changed from the appointive to the elective sys- 
tem, with tenure varying from one year to twelve. The 
popular demand was very strong, and would undoubtedly 
sooner or later have altered the term of the federal judges, 
but for the inflexibility of the national constitution. 

The results of these changes are what might have been injury to the 
expected. The standard of abihty for judges, none too ^o^'^^- 
high before, was appreciably lowered, as most of the dignity 
of the office was gone, and as legal fitness was not the first 
requirement of candidates. This naturally showed itself in 
the application of the law, but the deteriorating effect was 
partially counteracted by the unusually high character of the 
bar, which has at all times in our history called forth favor- 
able comments fi^om competent observers. The evil influ- 
ences of brief tenure were finally realized, and since 1845 
most of the states that had gone farthest have increased the 
length of the judges' term. 

186. Increased State Activity : Finance. — It is a common- 
place nowadays that democracies are extravagant. Whatever 



ISO 



The American Federal State 



Extrava- 
gance of 
early democ- 
racy. 

Thorpe, 
ibid., II, 429- 
446. 



Financial 
history of 
Michigan 
(1835-1850). 

Cooley, 
Michigan, 
chaps. XIII, 
XIV. 



Develop- 
ment of 
public school 
systems. 

McMaster, 
United 
States, V, 
chap. XLIX. 



they have been since, the first ones certainly were. The 
great democratic wave of the thirties happened to coincide 
with a period of the wildest speculation. The result upon 
the increased expenditure of the Western states may be 
imagined. Wild cat banks were created by the score, 
millions of dollars were voted for improvements in a wil- 
derness, and state aid was given to schemes whose only 
recommendation was that they promised to develop the 
country. 

Suppose we take the case of Michigan. In 1837 the state 
replaced the old method of creating banks through special 
acts by a more truly democratic one of having incorporation 
take place under general law. But in the troublous times 
that followed only the most careful administration of such a 
law could have saved the state from disaster, and administra- 
tion is not even now democracy's strong point. At the same 
session (1837) the legislature "authorized the governor to 
borrow five millions of dollars for railroads, canals, and other 
improvements." Quite an investment for a frontier state 
with a population barely one hundred and fifty thousand in 
days when official salaries of $1000 were none too common. 
A little later the banks were allowed to suspend specie pay- 
ment, but were permitted to continue issuing paper money. 
This they did till the state was flooded with the depreciated 
currency of forty-nine banks. The effort to give state aid 
to railroads ended in much the same way. It was found 
almost impossible to float the bonds, and after a series of 
misfortunes the projected lines were sold at a serious loss. 
In 1850 the new state constitution prohibited subscription 
in the stock of any company. Democracy had learned 
some hard lessons in the school of experience. 

187. Education. — The same causes which gave the people 
so much power in political affairs were influential in the ex- 
tension of systems of free education. Not only did people 
begin to realize that it was necessary for citizens to be trained 
for their civic duties, but they felt that the state owed every 
person the opportunity of a good education. Under the 



Nationality and Democracy 151 

lead of Mann and Barnard, New England built upon her old 
foundation of belief in common schools a far more perfect 
free system than had yet existed. In the West, democracy 
insisted upon education as a right. As all of these states 
were once parts of the public domain, each had an educa- 
tional fund of one section, or after 1848 of two sections, in 
each township. This greatly lightened the burden of the 
local school taxes, and thus gave the West decided advan- 
tages over the East. But it did more. At each schoolhouse The school 

the voters of the township gathered to discuss school matters f ^^^''^^ ^'^^ 

^ ° local govem- 

and fix the school tax. Soon they insisted upon looking after ment. 

other subjects of local interest, and around the schoolhouse Bemis, in 

there grew up a real local self-government which was very °^- ^- ^- ^■' 

favorable to the further spread of democracy. ' ~>> 

188. Equalization of Rights. — It was inevitable that Abolition of 
sooner or later class privileges should disappear. We have ^ ^^ P"^^" 
already noticed that religious qualifications for the firan- 

cliise had been the first to go, and that property was not j^^^j Democ- 
required of voters to any extent. Laws of inheritance no raq/, 359- 
longer gave the eldest son a special share. Imprisonment ^ ^' ^''^^ ^* 
for debt had been gradually abolished after 1776, and was 
practically completed in 1840. The newer states were 
beginning to make homesteads exempt from seizure by 
creditors. Through constitutional provision or statute some 
states were following the example of the national govern- 
ment which in 1840 made ten hours a day's labor for its 
employees, but most changes of this character came later, 
after the Civil War. In some cases, the constitutions 
expressly stated that married women might hold property in 
their own names, and gave them certain other specific rights 
before the law and in inheritance. The movement in favor 
of equalization was almost universal though less pronounced 
in the older and more conservative sections. 

189. Local Government in Towns and Counties. — In Democratic 
local government the changes produced by democracy made *^"^°S^s- 
for both better and worse government ; better in that the constTmst 
sphere of the cities, towns, and counties was so much more 11, 469-475. 



152 



The American Federal State 



Cf. Cleve- 
land, Democ- 
racy, 222- 
227. 



Change to 
popular rule 
followed by 
misgovern- 
ment. 

Fairlie, in A 
Municipal 
Programme, 
11-17. 



clearly defined and greatly enlarged ; for worse because, 
especially in the cities, the control of the governmental 
machinery fell into the hands of those least fitted to run it. 

During colonial times all of the counties had been mere 
subdivisions of the colonies created for judicial or admin- 
istrative purposes. Over them the colonial government had 
absolute control, appointing all officials and changing the 
boundaries of the counties or the location of the county seat 
at will. No change had been made in this system by the 
older states, and the Western ones had adopted the form of 
local government in use in the states from which its inhab- 
itants had emigrated, modified to some extent by different 
economic conditions. But as time went on the new states 
began to introduce changes which made the local govern- 
ments much more popular in character. The election of 
county justices, sheriffs, and other officials was given to the 
people of the counties. The jurisdiction of the justices was 
enlarged even when they were township officers, and county 
courts with still greater powers were often permitted. These 
changes were by no means confined to the West, though 
more fully developed in that section. They tended to 
make the local government not only more democratic, but 
much more vital. 

190. Municipal Government. — Before 1820 cities were 
so few and small that Httle attention was paid to them. 
There was a complete lack of uniformity in their government, 
and colonial differences and customs had been continued. 
However, the mayors and treasurers, police officials and 
judges were commonly appointed by the state governors. 
As in everything else, appointment gave place to election 
and by the people of the municipality. This gave them 
almost complete self-government with very little interference 
from the legislatures. It was a very excellent application of 
democratic principles, but, unfortunately, the cities showed 
most of the faults with few of the excellencies possible in 
popular rule. In them the " spoils" system was brought near- 
est perfection, and " boss " rule was most easily developed. 



Nationality and Democracy 153 

This demoralizing state of affairs was probably due to two 
things, (i) The growth of the cities was quite rapid, and 
a large part of the new population was foreign. As suffrage 
was universal, and a declared intention to become a citizen 
often gave an ignorant immigrant a vote, the elections were 
decided by an element easily led and corrupted. (2) The 
rapid growth made extensive improvements necessary. 
This expenditure acted as a temptation to certain of the 
lower classes to take part in city government, and as the 
money was expended by these persons, it tended to increase 
the evils already existing. So democracy in the cities came 
near being mob rule, till at length the cities appealed to the 
state legislatures for help. But legislative interference could 
not undo what was already accomplished, and left the cities 
with two masters instead of one. 

The beginnings of reaction against the extreme results of Reaction 
democracy appeared not only in the cities, but all over the ^s^mst 
country before i860. There was already a marked tendency forms of 
to lengthen terms of office, to grant the franchise less freely, ^^'^'^^^^ 
and by checks and devices to protect the people from them- 
selves. 

QUESTIONS AND REFERENCES 

The New Nationality (§§ 162-169) 

a. On the Supreme Court consult Johnston's article in Lalor, on the 
'Judiciary'; Magruder's Marshall, c^az."^. X; Willoughby's Supreme 
Court; and Channing and Hart's Guide, § 175. The texts of the 
decisions are given in Thayer's Cases in Constitutiotial Law. Con- 
sult table of cases (p. xi) under those mentioned, and Fletcher v. Peck, 
Cohens v. Virginia, Gibbons v. Ogden. 

1. In what ways did the War of 1812 affect nationality through {a) 
influencing powers of the national government, (3) making us eco- 
nomically independent, and (c) unifying public sentiment ? 

2. Was the tariff of 181 6 intended to be temporary or permanent ? 
Was it possible to gain the objects desired by a temporary tariff ? 

3. Why was the feeling toward a United States bank different in 
181 1 and in 1816 ? Was the bank chiefly valuable as a governmental 
or a nationalizing institution ? 



154 l^fi^ American Federal State 

4. What justification do you find in the Constitution for internal 
improvements ? Have we internal improvements at the present ? If 
so, what ? 

5. Was slavery principally a political or an economic issue ? Was 
slavery more clearly aUied to state sovereignty, to sectionalism, or to 
nationalism ? 

6. Compare the advantages won by each section in the final com- 
promise. Which side won most ? What were the constitutional 
results of the compromises ? the political results ? 

7. Just how did the decisions of the Supreme Court strengthen 
nationality ? Was the court sufficiently conservative ? Would its 
permanent influence have been greater by following a different pol- 
icy ? If so, what policy ? 

8. What was the purpose of the Holy Alliance ? What had been 
done by the Alliance in Europe ? What was the attitude of England 
toward the Alliance before 1822 ? after 1822 ? What was the relation 
of the Alliance and Russia in Alaska to the Monroe Doctrine ? 



Political Reorganization on a Democratic Basis (§§ 170-175) 

1. What part has the frontier played in our history ? 

2. Can you find any good reasons for limiting the franchise to men 
of property ? State advantages and the disadvantages of the union of 
Church and State. 

3. Did the Missouri question have anything special to do with the 
reaction in favor of particularism after 1820 ? Prove your answer. 
Did it affect the new organization of parties ? Compare the Whigs 
with the Federalists as to constitutional views, policies, social opinions, 
and section from which strength was derived. 

4. Could political class rule have been abolished except through the 
convention and " machine " system ? Were the latter to be preferred 
to the former ? Give reasons for your answer. 

5. With the presidents of most influence, what have been the sources 
of that influence ? To what extent was it due to their constitutional 
powers (and to which ones) ? to the feelings of the people ? to party 
leadership? etc. 

6. Did the " spoils " system get the strongest hold on the national, the 
state, or the local government ? State its advantages ; its disadvantages. 



Questions affecting Nationality (§§ 176-181) 

a. Macdonald, in his Documents, gives extracts from Webster's and 
Hayne's speeches on Foot's Resolutions. Benton's Thirty Years' 



Nationality and Democracy 155 

View gives a good brief record of the debate. Criticisms of the 
speeches are given in Lodge's Webster. 

b. Consult on nullification by South Carolina the following: 
Schouler, IV, 85-1 11 ; Sumner's yiz^r/^jow, chap. X; Von Hoist, Con- 
stitutional History, I, 459-505; Burgess, Middle Period, 220-241; 
Powell, Nullification and Secession, chap. VI; Houston, Nullification 
in South Carolina. 

1. Can the judiciary enforce its decree without the help of the 
executive ? how ? Why did it not do that in the Cherokee Case ? 

2. Compare the Nullification Act of South Carolina with Jackson's 
appeal. Which gives the truer view of the Union ? the correct 
interpretation of the tariff ? Would it have been better to have 
fought out the contest at that time ? \\'hat was the effect of the 
compromise ? 

3. What is the difference in principle between the tariffs of 1816, 
1828, and 1832 ? in details ? 

4. What was the influence of the new states between 1830 and i860 
as shown by the number of presidents they furnished, measures pro- 
posed and carried by them in Congress, and state constitutional changes 
adopted first by them, and then accepted elsewhere ? 

5. Had the United States Bank failed to establish a " uniform and 
sound currency," as Jackson claimed ? Did the election of 1S32 jus- 
tify Jackson's remark that the bank " might make us tremble for the 
purity of our elections in times of peace " ? 

6. Compare the race elements of immigrants before 1850; between 
1850 and i860. Which predominated ? ^\^lere did most of the Eng- 
lish settle ? the Germans ? the Irish ? 



Phases of Later Democratic Development (§§ 182-190) 

a. For the requirements of voters and ofl&ce-holders compare the 
tables in Thorpe, Constitutional History, II, 408-412, (state senators 
and representatives) ; 423, 424, (governors) ; 476-479, (electors) ; 
consult Appendix F and Bradford's Lessotis of Popular Government, 
chap. I. 

1. To what extent was the appointive system retained after 1830 ? 
Have the liberties of the people ever been threatened by long terms of 
judges ? 

2. If both houses of the legislature were on the same basis, why 
was it best to retain both ? Name all the checks you can which were 
placed by the people upon their representatives. 

3. Did internal improvements belong rather to the states or the 



156 The Americatt Federal State 

nation ? What investments in internal improvements by the states 
have proved successful ? What ones failures ? Explain why, if pos- 
sible, in all cases. 

4. To what extent did democracy before i860 produce equality in 
political and in social matters ? in economic relations ? in other 
ways ? Did democracy owe more to equality, or equality more to 
democracy ? 



CHAPTER VIII 

NATIONALITY AND SLAVERY (1S45-1877) 
General References 

Mace, Methodin History, 206-254. To 1865. 

Johnston, American Politics, chaps. XVI-XXIII. 

Channing, Student's History, 443-573. 

\s'Aiox^, Division and Reunion, 116-287. Excellent. 

Burgess, Middle Period, 39-60, 242-277, 289-474. The most valuable 
book to 1858. Burgess, Civil War and Reconstruction. (In 
preparation.) 

Curtis, Constitutional History, II, 191-440. 

Dunning, Civil War and Reconstruction. By far the best book yet 
published. 

Powell, Nullification and Secession in the United States. 

Macdonald, Select Docutnents (i 776-1865), 343-455. 

Foster, Commentaries on the Constitution, 1 10-268, 

Earned, under the United States. 

American Orations, III, IV. 

McPherson, Political History of Reconstruction. Indispensable for 
reference. 

Hurd, Theory of Our N'ational Existence. 

Schouler, Utiited States, IV-VI. To 1865. 

Rhodes, United States. 4 volumes. To 1865. 

Nicholay and Hay, Abraham Lincoln. 10 volumes. 

Davis, Rise and Fall of the Confederate Government. 2 volumes. 
Personal accounts of political events. 

Stephens, Constitutional View of the War between the States. 2 vol- 
umes. 

McCulloch, Men and Measures of Half a Century. 

Blaine, Tzuenty Years in Congress. 2 volumes. 

Cox, Three Decades of Federal Legislation. 

Sherman, Recollections of Forty Years. Volume 1. 

Johnston, in Lalor, under Principal Topics. 

Among the numerous biographies may be mentioned: Morse's Lin- 

157 



158 



The A^nerican Federal State 



Conditions 
in the South 
favor slavery. 



Slavery 
absorbs the 
life of the 
South. 



Slavery as 
a state 
institution. 



to/«, 2 volumes ; Brooks's Z£«^o/»/ McLaughlin's Ca^j/ Lathrop's 
Seward; YLTLrfs Chase ; lAcC&Ws Sievens ; Lives of Clay, Webster, 
and Calhoun, as in chap. VII. 

191. Slavery and the South. — The last period of the 
national era before 1877 is concerned principally with 
questions arising out of slavery. This system, which had 
once been almost universal in this country, had gradually 
been superseded at the North by free labor. The reasons 
for this are typographical, economic, and social. Such was 
the character of soil and climate that the occupations preva- 
lent in the Northern states could not use slave labor to 
advantage. The humanitarian sentiment which was the 
direct outgrowth of the revolutionary ideas concerning the 
rights of man succeeded in abolishing what little slavery 
prevailed. At the South, on the contrary, emancipation 
had made little progress before the invention of the cotton 
gin (1793), and after that time the demand for slave labor 
was great and increasing. For these reasons, slavery was 
almost of necessity anti-national, as it could not hope to 
regain the North, when a world-wide movement was abol- 
ishing slavery everywhere else among civilized people. It 
was therefore sectional, and it gave to the section that had 
nourished it a peculiar character. It did more than domi- 
nate the Southern states : it had absorbed the life of the 
South. We shall see later what the effects of that absorp- 
tion were; but we find in all matters of a political nature 
that the South more and more came to look at everything 
from the standpoint of slavery. All other interests were 
subordinated to this one till, in politics, the effect of any 
measure upon slavery was the first and the last thing 
considered by Southern statesmen. 

192. Slavery in the States before 1845. — It had always 
been a settled question that in the parts of the Union where 
slavery existed, slavery was to be left entirely to the states. 
In the discussions of the convention of 1787, it was never 
slavery in United States territory that caused dispute. The 
three-fifths compromise, the provisions for fugitive slaves, 



Nationality and Slavery 



159 



and the regulation regarding the slave trade were not, in 
a true sense, national questions, i.e. they dealt rather with 
slavery as a state institution, and sought to place it as far 
as possible from the control of the central government. In 
regard to them Professor Burgess says : " These were most 
momentous provisions. They secured slave property, 
increased slave property, and made slavery a vast political 
power in the hands of the slave masters. There is no 
doubt that the clock of the ages was turned back full half 
a century by the constitution of 1787." The influence of 
these arrangements made by the convention, combined 
with the increased value of slave labor due to the cotton 
gin, made slavery the most permanent institution of the 
South. As a rule, state laws regarding the treatment of 
slaves became more lenient; but emancipation, which was 
practically completed at the North by 1800, never received 
much encouragement. What little feeling in favor of 
emancipation existed before 1830 in slave states, disap- 
peared as individuals and classes at the North began agita- 
tion for the freedom of the slaves. On the other hand, as 
the antislavery sentiment spread in the non-slaveholding 
section, the free states enacted laws protesting against the 
enforcement of the fugitive slave act of 1793, now all but 
a dead letter. All of these things tended to widen the gulf 
between the North and the South. 

193. Slavery in National Territory. — Before 1 845 slavery 
in the territories had been regulated entirely by Congress. 
As early as 1784 Jefferson had sought to have all of our 
Western lands declared free; but when the proposed Ordi- 
nance of 1784 became the Ordinance of 1787 (§ 100), it 
was restricted to the territory northwest of the Ohio. To 
give it validity this ordinance was reenacted by the first 
Congress under the Constitution, and reafifirmed twenty 
years later when that body was petitioned to rescind it. 
The same Congress (1790) entered into a compact with 
some of the Southern states not to exclude slavery in the 
territories south of Kentucky. When we acquired Louisi- 



Wilson, 
Division and 
Reunion, 
chap. V. 

Burgess, 
Middle 
Period, 
39-54- 

Von Hoist, 
Const' I Hist., 
273-339- 



Northwest 
and South- 
west terri- 
tories. 

Von Hoist, 
ibid., 273- 
301. 



i6o 



TJie American Federal State 



Louisiana. 

Burgess, 
ibid., 54-58. 



District of 
Columbia. 

Burgess, 
ibid., 251- 
264. 



Slavery 
drives the 
sections 
apart. 

Mace, 

Methods, 
216-219. 



ana, we promised to recognize the right of the inhabitants 
to their property in slaves. As no further action was taken 
by Congress, that whole territory was open to slavery before 
the institution was, in 1820, "forever prohibited" above 
36° 30'. This compromise was really violated when a strip 
covering over a thousand square miles was added to 
Missouri in 1837. 

The District of Columbia had recognized slavery from 
the first. No effort was made to change this state of affairs 
till, during the thirties, abolition societies had petitioned 
Congress to abolish both the slave trade and slavery in the 
district. No attention was paid to these at first, but the 
House of Representatives became so annoyed that they fool- 
ishly denied the right of a petitioner to be heard. Instead 
of silencing agitation, this gave the abolitionists legal 
ground to stand on. 

194. Increase of Sectionalism. — While there had been a 
growing antagonism between the North and the South over 
the slavery issue, permanent sectionalization did not really 
begin until after 1830. The Missouri difficulty had caused 
a fierce but brief conflict, chiefly significant as showing 
the inevitableness of the contest between freedom and 
slavery, which it could not decide, but did postpone. 
With the new antislavery agitation, however, the case was 
different. The South had already come to identify itself 
pretty closely with slavery, and viewed all suggestions of 
emancipation as a serious danger to itself. It proceeded 
at once to check everything that tended in any way to 
hinder the growth of slavery and began to look about for 
new fields in which to develop further. The opportunity 
was at hand, for the new state of Texas had established its 
independence of Mexico, had made slavery one of its insti- 
tutions, and was anxious to enter the Union. The thought 
of annexing territory that might give to slavery four new 
states did much to strengthen the antislavery feeling at 
the North, and created a widespread opposition to the 
Mexican War, whose principal result would naturally be to 



Nationality and Slavery i6i 

increase the power of a relic of past barbarism. We cannot 
say that either the North or the South was really to blame 
for this increase of sectionalism. It was nothing more 
than an evidence of the fact that no nation can exist with 
two radically different and antagonistic economic institu- 
tions side by side; that the Union could not "permanently 
endure, half slave and half free." 

195. The Compromise of 1850. — As a result of our increase of 
treaties with England and Mexico, in 1846 and 1848, territory 

1 -IT- . , , (1846-I848). 

respectively, our national domain was increased by over 
a million square miles, extending from the ridges of the 
Rocky Mountains to the Pacific, and covering sixteen 
degrees of latitude. The northern quarter of this region 
was, in 1848, organized as Oregon territory, slavery being 
excluded. 

That same year the discovery of gold in California drew Features of 
to the neighborhood of the Golden Gate a population of ^^f compro- 
over one hundred thousand within a short period. Natu- 
rally, few of these were slave owners; and when, therefore, re ^"g^fs 

California applied for admission to the Union, it was as a 

rr. 1 1 1 <• 1 1 • Wilson, 

free state. 10 the leaders of the slavery extension move- Division and 

ment this was a serious blow, as California touched the Reunion, 

southern boundary of the United States. Under the cir- ^~ ^' 

cumstances, they did the best they could, and agreed, in Johnston, m 

the Compromise of 1850, to admit California, and abolish 552-553.' 

the slave trade in the District of Columbia, if all the rest g^^ggsg 

of the territory acquired from Mexico should be allowed to Middle Peri- 

choose slavery as the parts became states. By the same "^' 345-364- 

compromise. Congress purchased the claim of Texas, which Macdonaid, 

had refused to be divided, to a large area west of its pres- ^°l^""^^ ^' 

ent boundaries, and passed a fugitive slave act much more 

drastic in its methods than that of 1793. 

The enforcement of the fugitive slave act did more to Effect of the 

make the North antislavery than all other political meas- °f ^ fugitive 

■^ '■ slave law. 

ures combined. The sight of negroes, denied the protec- 
tion of Northern state laws or of an opportunity to prove ibid^^<-'viQ 
their freedom, quickened a sense of the injustice of human 



1 62 



The American Federal State 



Missoiiri 

Compromise 

repealed. 

Johnston, in 
Lalor, II, 
667-670. 

Macdonald, 
Documents, 

395-405. 

Burgess, 
Middle 
Period, chap. 
XIX. 



Effect of the 
repeal. 



The struggle 
for Kansas. 

Wilson, 
Division and 
Reunion, 



bondage, and seemed proof that the South did not intend 
to stop at any means of fostering slavery. This feeling 
loosened the ties of affection for the Whig party, whose 
chief strength lay in the free states, preparing the way for 
a new reorganization of political parties (§ 537). 

196. The Kansas-Nebraska Bill (1854). — Just at this 
juncture, democracy came forward with what it believed 
to be the solution of the slavery question. It said, let the 
choice of slavery or no-slavery be left to the new states on 
entrance to the Union. This will be in accordance with 
the principles of self-government and with natural law, as 
the system best fitted for the conditions will survive. This 
certainly seemed reasonable; but, in order to make popu- 
lar sovereignty possible, the Kansas-Nebraska Bill, in which 
Douglas embodied these ideas, found it necessary to set 
aside the Missouri Compromise. To a large part of the 
North this compromise was as sacred as the Constitution 
itself, and popular sovereignty was no justification for its 
repeal. Slavery seemed to have invaded their rights, and 
the supposed invasion produced a unanimity of antislavery 
sentiment almost as great as that for slavery at the South. 
The Whig party, which had pursued a temporizing policy, 
gave way to new antislavery organizations, the larger of 
which grew into the Republican party. The Democratic 
party, always strong at the South, was, at the same time, 
gradually transformed into a pro-slavery body. The elec- 
tion of 1856 shows how much wider the gulf between the 
sections had become. In spite of the efforts of politicians, 
platforms dealt with sectional questions, and the candidates 
were sectional in their thought, if not in their residence. 

The application of the ideas of popular sovereignty to 
the case of Kansas was extremely difficult because of civil 
disorder, but the free state men had the advantages of supe- 
rior organization and the greater mobility of free labor. 
The contest was really one-sided, and proved to the South 
that slavery could not compete with free labor on equal 
terms. 



Nationality and Slavery 163 

197. The Dred Scott Decision. — The final attempt of The Su- 
slavery to settle the great difficulty to its own satisfaction 5"^^!"^ ^°^ 

-' o ^ decides m 

was made in 1857, when the Supreme Court rendered its favor of 
decision in the Dred Scott Case. Dred Scott was a negro slavery, 
slave who had been carried from Missouri to Wisconsin Johnston, in 
territory (afterward Minnesota), and who, after his return _ ^ ' 
to Missouri, had sued for his freedom. The court decided 
that although Dred Scott had been taken to free soil, on ,^j^° ^^^^^ 
his return to Missouri his status was determined by Mis- XXI. 
souri law. But Chief Justice Taney and some of his asso- Macdonaid, 
elates went further. In an elaborate argument the chief ^ocume?ifs, 
justice gave this opinion: (i) Dred Scott is not a citizen 
and cannot become so. (2) The central government has 
no right to acquire or govern territory except as the agent 
of the states. If it is the agent of all the states, it does 
not possess unlimited power over the territory, but is limited 
by the Constitution to protect personal and property rights. 
He held that the right of property in slaves was one of 
which no person could be deprived " without due process 
of law"; that, consequently, "the act of Congress [Mis- 
souri's compromise] which prohibited a citizen from hold- 
ing and owning property of this kind in the territory of the 
United States north of the line therein mentioned [36° 30'], 
is not warranted by the Constitution, and is therefore void." 
As this view was indorsed by the majority of the justices 
in separate opinions, it was accepted as the decision of the 
court that slavery could not be prohibited by Congress in 
any of the national territory, and that the exclusion or non- 
exclusion of slavery must be decided for each state by itself 
on its entrance to the Union. 

This was essentially a new doctrine, and came as near to The contest 
declaring slavery national as was possible, on the basis of °'^^^ slavery 

° ■> ^ ' becomes in- 

" State sovereignty." But it was the view held by a decided evitable. 
minority of the nation. The majority not only refused to 
accept it, but continued to gain greatly in numbers and in 
determination. The court had done just what it wished to 
avoid. The chasm between the sections had been widened, 



164 



The American Federal State 



Election of 
i860 leads to 
secession. 

Channing, 

hh 326-331. 

Johnston, in 
Lalor. Ill, 
693-702. 



Comparative 
equality of 
the sections 
(1776). 



the irrepressibility of the conflict between the institution 
of slavery and the system of free labor was becoming more 
and more apparent. One step more, and all must see that 
the Union must become all free or all slave. 

198. Secession. — The election of i860 was the begin- 
ning of the end. Slavery had rent asunder all of the great 
national churches some time before, it had caused a split 
in the Whig party, and, finally, in i860, separated the 
Democratic party into a northern and a southern wing. The 
loyalty to the nation and the compromising of the poli- 
ticians had alone been able to sustain the Union intact. 
With the election of Lincoln, on a platform favoring the 
total exclusion of slavery from the territories, the South 
gave up hope of future success except by secession. South 
Carolina immediately called a constitutional convention, 
which, on the 20th of December, i860, repealed the act of 
1788 ratifying the Constitution of the United States. The 
reasons given for this action were set forth as follows: the 
history of the formation of the Union from 1776 to 1790 
was given to prove the reality of state sovereignty and the 
compact theory of the Constitution. This compact was 
said to be violated in two ways : first by the " personal lib- 
erty " laws of certain enumerated states at the North, which 
had nullified the fugitive slave acts; and second by the 
threatened danger to slavery as a state institution in the 
election of Lincoln. The Gulf states immediately followed 
South Carolina's example, for the reason that they believed 
better terms could be made with the North if they were out 
of the Union. President Buchanan thought secession ille- 
gal, but denied that he had the right to coerce a state, so 
nothing was done. Compromise failed, hostilities com- 
menced, the central Southern states threw in their lot with 
the South, and the deadly struggle began. 

199. The South and the North in 1776. — The reasons 
for the final result can perhaps best be shown by 
comparing the North and the South in 1776 and in 
1861. 



Nationality and Slavery 165 

As has already been stated, slavery had absorbed the 
life of the South. The significance of this may not be at 
once apparent. When the colonies had broken away from 
Great Britain, the states in which slavery was prominent 
were at least the equals in most respects of the others. All 
were devoted almost entirely to the pursuit of agriculture. 
What little commerce there was benefited the South as 
much as the North, because the agricultural products of the 
former were better suited to exportation. In the carrying 
trade, in her local self-government, and in some kinds of 
manufacture, New England had the advantage of the other 
sections; but to counterbalance these the South had her 
large class of slaveholders, whose training and leisure 
especially fitted them to be the leaders in all national 
movements. 

200. The South (1776-1861). — Politically, industri- siaven- inter- 
ally, and socially the world had made great strides between ^^^^^ ^^'i^^ 
1776 and i860. The United States was in the van of this of the'south. 
movement. But the character of the development had „ . . 

W ri°'ht 

been very different at the North and at the South. Slavery industrial 
had gained a stronger hold in the Southern states, so the ^-'oitition, 
system of class separation was no less marked in i860 than ^ ^^' 
in 1776. Democracy, with its ideal of equality, was the ^r^^i°H't 
important product of the civilized world during the first i, 340-356. 
half of this century; but what place could democracy occupy 
in a section controlled by slavery ? The South had felt the 
effects of the movement, but had had little part in it. Her 
politics were dominated in i860, as they were in 1776, by 
the slaveholding landowners. This made adult manhood 
suffrage less common and a far less vital force than at the 
North. In her political method as well, the South had 
retained eighteenth-century ways. For example, the South 
clung to the older theor}' of state sovereignty, and that the 
Union was a StaatenMind. As late as i860 South Carolina 
had chosen her presidential electors through the state legis- 
lature, and only one of the ordinances of secession was 
submitted to the voters for ratification. 



1 66 



The American Federal State 



Influence of 
slavery on 
industry. 



Progress in 
the North 
(1776-1861). 

Hart, Essays 
on Gov't, 
268-278, 
292-298. 



If slavery had exerted an unfavorable influence on society 
and politics alone, the South might still have hoped for 
success. But it had been like a huge octopus, which had 
seized upon everything, and from that had crushed all life. 
It had prevented popular education, hindered the extension 
of every means of communication, and, more than all else, 
had made the development of material resources impos- 
sible. The South was not less rich in soil or mineral 
resources than the North, but slave labor could be used 
only for the coarsest kind of work; yet, at the same time, 
competition by free labor was not possible. On this 
account agriculture was the only occupation in 1861, as in 
1776; and this agriculture meant cultivation on a large 
scale, with crude and wasteful methods. Manufacture, 
which required skilled labor, was out of the question, as 
the slave could not be depended upon, and free labor 
shunned the South. Internal trade under the conditions 
was very limited. The case of the South was what scien- 
tists would call one of "arrested development," and its 
sole cause was slavery. 

201. Advantages of the North over the South. — How 
different was the situation at the North. Here change had 
been rapid and increasing. Democracy had played havoc 
with the old social limitations and political restrictions. 
In every line of activity progress had been made from the 
simple to the complex. Free labor filled all things with 
life and vigor. There was every possible inducement for 
inventive genius, personal industry, and industrial manage- 
ment. This was productive of a spirit scorned by the South 
because of its petty commercial character, which had the 
marked disadvantage of withdrawing the ablest minds from 
the political arena. 

All of these conditions were attractive to a numerous class 
of Europeans, to whom the reactionist regime after 18 15 
left no hope at home. They flocked to our shores in 
thousands. Before 1861 five million had come, about 
one-half during the previous ten years. Other things 



Nationality and Slavery 



167 



being equal, they would have turned the scales in favor of 
nationality and freedom. The way the North had out- 
stripped the South is apparent from a comparison of the 
two sections. 



In 1790 the population was the same, and the free states had five 
more congressmen. By 1810 the North had 300,000 more people, 
while its majority in the House was twenty-five. In 1840 the popula- 
tion of the South was seven and one-third millions, that of the North 
nine and three-fourths. In the House the South had 100 represen- 
tatives, the North, 142. By i860 the North had seven millions more 
people and two-thirds of the members of the lower house. 

When the first census was taken in 1790, we find the sections have 
almost exactly the same area, about 400,000 square miles, and a differ- 
ence of but seven thousand in population. The exports were a trifle 
over eight and a half millions at the South, and about a hundred 
thousand less at the North. 

In i860 the area of states allowing slavery was 875,743 square miles 
to 768,25s square miles for those that were free; but the white popu- 
lation of the North was 19,000,000, and of the South and the border 
states less than 8,000,000. The exports of the South were $230,000,000 to 
^^105,000,000 for the North, but cotton alone amounted to $191,000,000. 
In imports, the North had $331,000,000 to balance $31,000,000 for 
the South. Its banking business was seven times as large as that of 
the slave states; even its farm lands were worth nearly three times 
as much, and the total estimated value of property at the South was 
less than five and a half billions, including slaves worth nearly three 
billions, while the property of the North was valued at eleven bill- 
ions. In manufacturing a still greater difference existed, for the free 
states produced just ten times as much as the states that seceded, and 
the manufactures of New York alone exceeded those of all the slave 
states by a hundred millions. 



Population 
and con- 
gressmen 
(1790-1860). 



Comparison 
of the 
sections 
in 1790. 



Comparison 
in i860. 



202. The Situation in 1861. — Nevertheless, the situation Dangers 
of the national government in 1861 was a precarious one. threatening 
The South had practically controlled all of the departments. (1861). 
The North did not fully realize how much in earnest the 
South was. Commercialism tended to create a spirit of 
indifference. The disputes over the character of the 
Federal Union made it necessary to use authority with 
caution. Our credit was poorer than it had been in years, 



1 68 



The American Federal State 



Slavery the 
chief cause 
of failure. 

Cf. Wilson, 
Division and 
Reunion, J J 
II9-123. 



War 
increases 
nationality 
and destroys 
state sover- 
eignty. 



and the fear that the Union might be dissolved almost 
destroyed it. Europe looked with favor upon the South, 
with whose leaders the governing classes were more in 
sympathy. But the same energy that had made the North 
what it was, proved itself able to deal with the situation. 
The nation responded nobly to the call for troops, the 
banks threw in their lot with the Union, the government 
created an army and navy, its authority gathering momen- 
tum as the war progressed. Meanwhile industry and com- 
merce, instead of being absorbed by the war, were stimulated 
by it. The vast strength of a system of free labor was equal 
to the emergency. 

203. The Failure of Secession. — The reasons why slavery 
failed to set up a Confederate government of its own are 
two kinds. The cause of most importance is, of course, 
slavery itself, for it showed its weakness in those very par- 
ticulars in which the free system was so strong. Perhaps 
the greatest of the minor causes was the failure of the 
South to carry with it the border slave states. Less impor- 
tant was the inability to secure European recognition. The 
South had military and political leaders of great ability; 
she fought nobly on her own soil with the tremendous 
advantage of inside lines. She exhausted her resources of 
men and materials, using every device of absolute rule, but 
to no purpose. Slavery, to which she had given herself 
body and soul, had made defeat inevitable. But the defeat 
meant the release of the South from a bondage worse than 
that of the slave. 

The failure of secession was accompanied by a corre- 
sponding increase of nationality. This was principally 
due to two things: (i) The outburst of national feeling, 
whose primary object was the preservation of the Union. 
(2) The increase of national authority, made necessary in 
the prosecution of the war, and intensified by the complete 
victory of the Union forces. 

This new nationality in the period of reconstruction 
destroyed every vestige of secession as a legal right, and 



Nationality and Slavery 



169 



its underlying principle, state sovereignty. In fact, 
nothing that had espoused the cause of slavery escaped 
uninjured in the terrible holocaust. 

204. The Constitution during the Civil War. — During 
this crisis it is interesting to notice the attitude of the gov- 
ernment to the written Constitution, and of the depart- 
ments to each other. A question of first importance came 
up when it was asked whether the disorder in the seceded 
states constituted an insurrection or a rebellion. The gov- 
ernment made an attempt to treat it as an insurrection, but 
the acts of Britain and France, recognizing the belligerency 
of the Confederacy, and acts of the national government 
itself, such as that establishing a blockade, made this 
theory untenable. Another question was how far the con- 
stitutional guarantees of private rights were compatible 
with a necessary use of the military powers of the Presi- 
dent. Where insurrection or rebellion actually existed, the 
conclusion must be that military law is superior even to the 
Constitution. A good example of this is the famous Eman- 
cipation Proclamation, by which citizens of the seceded 
states were deprived of their property "without due process 
of law." We must further conclude that in parts of the 
country where there is disaffection without disorder, the 
President must be allowed to use his discretion. The at- 
tempt of the Supreme Court to restrain President Lincoln 
from suspending the writ of habeas coi-ptis in Marj'land 
was a complete failure, and showed that the court must 
not attempt to interpret the Constitution as it would 
in times of peace, unless it wishes to destroy its own 
influence. Later, however, the decision in the Milligan 
Case (1866) supported the claim which is likely to be 
recognized in the future, except in extreme cases, namely, 
that the military courts must not try to supplant the civil 
courts where the latter are being held. Yet it will proba- 
bly be the rule that the judiciary will not attempt to 
interpret the Constitution for the President, who in 
times of war must be a sort of dictator, even though he 



A few viola- 
tions on the 
ground of 
public 
necessity. 

Johnston, in 
Lalor, II, 
432-434- 

Dunning, 
Civil War 
and Recon- 
struction, 
1-62. 

Tiedeman, 
Unviritten 
Const, of 
U. S., 83-90. 



I/O 



The American Federal State 



The problem 
of recon- 
struction. 



Five theories 
as to the 
status. 

Dunning, 
Reconstruc- 
tion, 99-112. 



may not receive the full support of Congress, as Lincoln 
did. 

205. Reconstruction. — The reconstruction period was 
much more productive of changes in the written and the 
unwritten constitutions than the Civil War had been. The 
time of our statesmen was largely devoted to the compli- 
cated problems to which the peculiar condition of the 
seceded states gave rise, or which grew out of the duty of 
the government to the negroes just freed by the thirteenth 
amendment. The magnitude of these problems was 
unquestioned, but, unlike many difficulties we have encoun- 
tered, the solution could not be left for some indefinite 
future time. It was necessary to take action at once, to 
map out a policy comprehensive enough to cover all ques- 
tions, closely in touch with the spirit of the period, yet not 
inconsistent with our previous history. 

206. Status of Seceded States. — The greatest legal diffi- 
culties were presented by the questions : what was the status 
of the seceded states? were they in the Union or out of the 
Union? To admit that they were out of the Union would 
have been to acknowledge the right of secession, the suc- 
cess of secession, or both. If it was claimed that they 
were in the Union, there was no reconstruction problem, 
only need of restoration to their normal condition. While 
a direct answer to this question was seldom given, several 
theories were developed, soon after 1865, presenting dif- 
ferent points of view. The Southern and the presidential theo- 
ries agreed that the states were still parts of the Union, but 
out of their constitutional relations to the central govern- 
ment. They stated that restoration should take place through 
action of the people of each state, under limitations pre- 
scribed according to the first by those people; according to 
the second by the President. Charles Sumner held the 
theory that when a state tries to secede, it commits suicide 
as a state, that it thereby loses all organization as a local 
political society, and becomes merely a part of the territory 
of the Union, under its control in regard to local, as well 



Nationality and Slavery 171 

as national affairs, i.e. the states reverted to the condition 
of territories. Thaddeus Stevens went further, and in the 
conquered province theory advocated the view that the South 
was not even in the condition of territories; that it was a 
conquered district. He therefore proposed wholesale con- 
fiscation and appropriation of land to negroes. As none of 
these theories was acceptable to moderate men, the theory 
of forfeited rights came to be the basis of final reconstruc- 
tion. It held that the people of the states had forfeited 
their rights by attempted secession, and that those rights 
could be restored to them only on the fulfilment of certain 
conditions. The judge of what the conditions should be, 
and when they had been fulfilled, was Congress, because 
Congress was instructed by the Constitution to guarantee to 
each state a republican form of government. 

207. Plans of Restoration. — President Lincoln and his Lincoln's 

successor, President Johnson, were anxious to have the ^°d John- 
son s plans, 
seceded states restored to their constitutional relations as 

soon as possible. To this end they used their power as j^jor iii'° 

commanders-in-chief to grant amnesties and pardons, and, i\T.etseq. 

in addition, declared that when a state government had Dunning, 

been formed by loyal voters equal to one-tenth of the whole Reconstruc- 

number of voters in i860, they would recognize such a gov- ""*' ^^ ^' 

emment and declare the state fully restored. Lincoln's 

death left the application of this plan to Johnson, who 

attempted to carr)' it out. But he reckoned without his 

host, for Congress objected to the doctrine that restoration 

was to be through the President, and proceeded to take 

full charge of all Southern affairs. 

208. Negro Legislation. — Instead of dealing at the first Freedmen's 
directly with problems of reconstruction proper, Congress B^^^*^ ^'^^' 
contented itself with the care of the freedmen. A bureau Wilson, 
for the care and supervision of the freedmen, which was in ^^^"yj^ '^ 
the beginning considered temporar}', was, in 1866, renewed \ zzj. 
with greatly enlarged powers. The President objected on Johnston, in 
the ground that the bureau was suited only to war condi- Laior, iii, 
tions, and that as Congress did not represent the Southern ^ ~~"^^" 



1/2 



The American Federal State 



Dunning, 
ibid., 87-91. 

Civil Rights 
Bill. 

Dunning, 
ibid., 91-99. 



Five military 
districts. 

Wilson, 
Division and 
Reunion, 
\\ 12S-131. 

Johnston, in 
Lalor, III, 

551-554. 

Dunning, 
ibid., 136- 
148 ; 176 et 
seq. 



states, it was an unconstitutional body. A little later a 
similar bill was passed over the President's veto. This was 
followed by the much more radical Civil Rights Bill. The 
undoubted purpose of the act was to protect the negroes 
from the discriminating legislation of the Southern legisla- 
tures, which sought to reestablish a form of serfdom. To 
do this, it made the negroes citizens, and declared that 
they had the rights of citizens to hold property, sue and be 
sued, to give testimon)', and of equal protection of the 
laws. Elaborate provision was made for the proper enforce- 
ment of the measure by national authority. The bill was 
promptly vetoed by Johnson, but as promptly passed over the 
veto. In order to place these rights beyond the power of 
future congresses, the fourteenth amendment was soon after 
proposed, not only making the negro a citizen, but bringing 
pressure to bear upon the states to grant him the franchise. 
209. Military Reconstruction. — Congress then devoted 
itself to the problem of reconstruction. It had by this time 
thoroughly broken with the President, and did everything 
in its power to injure him. In the military reconstruction 
bills (1867), the whole subject was left to Congress or to the 
general of the army. The South was to be divided into 
five military districts, each under the control of a military 
commander with almost absolute power. Under the super- 
vision of this commander, a registration was to be made of 
all male persons of voting age, except those disqualified by 
participation in rebellion. A state constitutional convention 
was to be chosen by these registered voters, the fourteenth 
amendment was to be ratified, and no registered voters were 
to be disfranchised. If the constitution met with the 
approval of these voters in the states and of Congress, the 
state was to be considered a full member of the Union. 
Under these acts military reconstruction was completed in 
all of the states except Tennessee, which had been " read- 
mitted" in 1866, and in Texas, Mississippi, Virginia, and 
Georgia, which were obliged to pass the fifteenth amend- 
ment, also, as a condition of "readmission." 



Nationality and Slavery 



173 



210. Impeachment of President Johnson. — Ever since 
the passage of the second Freedmen's Bureau Bill the 
executive and legislative branches had been getting more 
and more out of s}Tiipathy with each other. Congress 
proceeded to pass all important measures over the veto 
with unfailing regularity. But it did more. It (1867) 
arranged its sessions so that they should be practically con- 
tinuous, took from the President the powers of issuing gen- 
eral proclamations of pardon, of suspending the writ of 
habeas corpus, and of removing officials. It virtually placed 
control of the army in the hands of General Grant. The 
President could retaliate only by denouncing Congress, 
which he did in most intemperate language. He attempted 
to ignore the Tenure of Office Act, which had taken from 
him the power to remove national executive officials; but 
by that succeeded in arousing Congress to such a pitch that 
articles of impeachment were brought against him by the 
House of Representatives. The charges, of which there 
were eleven, were principally of a political nature, and 
party feeling ran so high that the danger of conviction was 
very great. After a long trial the Senate voted (35 to 19) 
that the President was guilty of the principal charge brought 
against him. As a two-thirds majority had not been 
obtained, most of the other charges were dropped. 

211. Effect of the Verdict on Impeachment. — The acquit- 
tal of Johnson had been due to the belief, on the part of 
certain leaders in the Senate, that conviction would greatly 
damage our constitutional system by leading to the perma- 
nent subordination of the executive to the legislative branch. 
The truth of that belief is only too apparent when we come 
to consider the relation of the two departments during the 
next twenty years. While the President's chair was occu- 
pied most of the time by men respected and trusted by 
Congress, the executive was almost without authority and 
influence. What the effect would have been had Johnson 
been removed from office by political passion, it is impos- 
sible to say. There can, however, be no uncertainty that 



Conflict 
between 
Johnson and 
Congress. 

Dunning, 
ibid., 253- 
271. 



Impeach- 
ment charges 
and trial. 

Dunning, 
ibid., 272- 
303- 

Johnston, in 
Lalor, II, 
482-484. 

Prevented 
executive 
subordi- 
nation to 
Congress. 



174 



The American Federal State 



The XIII 

Amendment 

(1865). 



The XIV 

Amendment 

(1868). 



The XV 

Amendment 

(1870). 



the executive demoralization that must have followed the 
elevation of a reconstruction leader to the chief magistracy, 
coupled with the moral effect of conviction on both depart- 
ments, would have produced a radical change in our system 
of government, perhaps for better, probably for worse. 

212. The Amendments ; Provisions. — The changes in the 
written Constitution were embodied in three amendments, — 
the thirteenth, fourteenth, and fifteenth. The first had been 
proposed by Congress February i, 1865, and abolished 
slavery in every part of the Union. It was declared ratified 
December 18 of the same year. The fourteenth amend- 
ment did for the Civil Rights Bill what the thirteenth had 
done for the Emancipation Proclamation, but it covered 
other subjects. All persons born or naturalized in the 
United States, and subject to its jurisdiction, were declared 
to be citizens of both the United States and of the state in 
which they resided. No citizen of the United States was 
to have his privileges or immunities abridged by the states, 
"nor should any person be deprived of life, liberty, or 
property without due process of law." If a state attempted 
to cut off any class of adult male citizens from the franchise, 
it was to lose a proportional number of representatives in 
the lower house. The validity of the United States debt 
was not to be questioned, but all Southern state debts 
incurred during the war were declared illegal. The amend- 
ment was proposed in 1866, and was proclaimed a part of 
the Constitution in July, 1868. The next year Congress 
proposed, in the fifteenth amendment, that "the right of 
citizens of the United States to vote shall not be denied or 
abridged by the United States or by any state, on account 
of race, color, or previous condition of servitude." As 
with the other amendments. Congress was to have power to 
enforce it by appropriate legislation. On March 30, 1870, 
ratification was completed and changes in the written 
Constitution ceased. 

213. The Supreme Court on Reconstruction Questions. — 
By its interpretation of the reconstruction acts and of the 



Nationality and Slavery 



175 



amendments, the Supreme Court played a very important 
part in the history of this time. In Texas v. White (1868) 
the court declared that there was an " indestructible Union of 
indestructible states"; that no state had lost its statehood, 
but that, nevertheless, when a state is out of its ordinary 
relations to the nation, Congress had the power to restore 
it to its proper position. 

In the Slaughter House Cases (1873) and in the Civil 
Rights Cases (1883) the court gave its construction of the 
first clause of the fourteenth amendment. In the former, 
attention was called to the fact that the privileges of a 
citizen of the United States are different from the privi- 
leges of the citizen of a state, and that the purpose of the 
amendment was to keep the states from infringing upon the 
privileges of United States citizens, not at all to regulate 
the rights of citizens of a state as affected by state laws. 
By this decision the court failed to nationalize civil rights 
as it might easily have done, but carefully protected the 
rights of the states from the aggressions of Congress. 

In the Civil Rights Cases the law of Congress (1875) 
prohibiting any discrimination by railroads, innkeepers, 
and others, on account of color, was held to be in excess 
of the powers of Congress, because the civil rights dealt 
with by the act were rights of citizens of the states. 

While the court limited itself to a strict construction of 
the fourteenth amendment, it made use of the doctrine of 
implied powers in regard to paper money. The first deci- 
sion (1870) was that the issuing of paper money (1862, 
1863, §601) was a war measure, not justified in times of 
peace. In the Legal Tender Cases (1872, and again 1884) 
the court reversed its decision, and recognized the right of 
Congress to issue "greenbacks " at its own discretion. The 
general influence of these opinions on the relations of the 
states to the nation, and on the powers of Congress, was 
almost inestimable. 

214. The Aftermath of Reconstruction. — After the se- 
ceded states had been "readmitted," there was left to them 



Texas v. 

White 
(i868). 

Dunning, 
Reconstruc- 
tion, 133-135. 



The Slaugh- 
ter House 
Cases (1873). 
Cf. §§ 248- 
249. 



Civil Rights 
Cases (1883). 



Cases 
affecting 
United 
States notes. 

Knox, U.S. 
Notes, 156- 
166. 



"Carpet- 
bag" govern- 
ment. 



1/6 



The American Federal State 



Johnston, in 
Lalor, III, 
SS4-SS6- 



Disorder and 
the force acts. 

Wilson, 
Division 
and Reunion, 
kk 134. 135. 

Johnston, in 
Lalor, II, 
680-682. 

The electoral 

commission 

(1877). 

Johnston, in 
Lalor. II, 
50-53. 



the great difficulties of reorganizing their state govern- 
ments. In the formation of the new constitutions, the 
negroes had been allowed to vote according to the pro- 
visions of the Civil Rights Bill. For a majority of the 
states, the control of political affairs remained for several 
years in the hands of freedmen, without training or capac- 
ity for governing, and frequently led by white adventurers, 
more capable perhaps, but less scrupulous than themselves. 
The result was misrule, scarcely equalled in extravagance 
or corruption by our large cities during their worst periods 
of bad government. In a short time several of the states 
found themselves burdened with debts of ;^ 40, 000, 000 each. 

To such government the better classes refused to submit. 
By methods similar to those employed by the famous " Ku 
Klux," by intimidation and fraud, the whites often suc- 
ceeded in gaining possession of the government or in set- 
ting up a rival organization. In these serious civil disputes. 
Congress sought to protect its new citizens by the use of 
national authority, applied in "force " acts, but it was not 
successful in maintaining order. 

This state of affairs came near causing a crisis in the 
presidential election of 1876. Two sets of returns were 
sent in by Louisiana, South Carolina, and Florida. As 
Congress was unwilling to give the president of the Senate 
discretion as to which he should count (twelfth amend- 
ment), it finally agreed to create an "electoral commis- 
sion," composed of five senators, five representatives, and 
five justices of the Supreme Court. The decision of this 
commission was, fortunately, accepted by all parties, and 
a serious danger averted. 



QUESTIONS AND REFERENCES 

Slavery before 1845 (§§ 191-194) 

a. Compare the accounts on slavery given by Von Hoist, Consiiiu- 
Honal History,!, Tpi-^-y); 'Rmge?,?,, Middle Period, chap. Ill; Rhodes, 
United States, I, chap. I; Draper, Civil War,Yo\. I; Gt&tlsy, Ameri- 
can Conflict, I, 49 et seq. 



Nationality and Slavery 177 

1. Under what conditions would slavery have been favorable to 
nationality ? Were there any instances in our history when slavery 
was not sectional ? 

2. Show clearly whether the " clock of ages was turned back full 
half a century by the Constitution of 1787," and why. 

3. Write an outline sketch of the history of emancipation in Eu- 
rope and in European colonies during the nineteenth century. 

4. Had there been any doubt in 1787 and in 1820 as to the right 
of Congress to prohibit slavery in the territories ? 

5. Make a table showing the action of Congress regarding slavery 
in the public domain from 1787 to 1862. Compare areas closed to 
or left open to slavery. 

6. Was there more, or less, nationality in the United States in 1845 
than in 1825 ? why ? 

Slavery in the Territories (§§ 195-197) 

a. Study Webster's "Seventh of March Speech" (1850) in Ameri- 
can Orations, III. Notice what statements called forth especial com- 
ment. For that comment consult notes on the speech. Lodge's Webster, 
Burgess's Middle Period, Rhodes's United States, etc. 

b. Read the " Dred Scott " decision in Thayer's Cases in Constitu- 
tional Law and the extracts from opinions in Macdonald's Documents. 
The best short account is in Burgess. Consult Rhodes for views of 
North and South at the time, Douglas's confession in his debate with 
Lincoln (VoL II), and conflicting views in the Charleston convention 
of i860. 

1. Did the measures included in the Compromise of 1850 give a vic- 
tory to the North or to the South ? 

2. Just what is meant by " popular sovereignty " ? Did the Com- 
promise of 1850 repeal that of 1820 ? So long as the state of Mis- 
souri was no longer under the control of Congress, what moral right 
had that body to repeal the Missouri Compromise ? Has Congress a 
right to pass irrepealable laws ? Give your reasons in full. Was the 
repeal of the Missouri Compromise a political mistake ? 

3. Which was more in conformity with our customs and our institu- 
tions, popular sovereignty or territorial government by Congress ? If 
the slavery question was to be left to the territories, why not foUow 
Chase's suggestion, and leave them complete self-government ? 

4. Compare the opinion of Taney with the dissenting opinion of 
Curtis. Which gives the stronger argument on the question of negro 
citizenship ? Do you approve Taney's position on the relation of the 
nation to " Missouri territory " ? 

N 



178 The American Federal State 

5. WTiat was the effect of the decision, and what would have been 
the effect had Curtis's position been upheld upon {a) slavery in the 
territories, (b) slavery in the free states, (c) slavery in the slave states, 
and (d) sentiment in the North and the South ? 

6. Was the decision dangeroas to the North ? Was it approved by 
Douglas and the Northern Democrats ? Was compromise between the 
North and South possible after the decision ? 

SecesBion and Civil "War (§§ 198-204) 

a. For the difference between the slave and free states consult Help- 
er's Impending Crisis, chaps. I, VIII; Von Hoist's ConUitutiotial His- 
tory, I, 240-256; Wright's InduUrial Evolution of the United States, 
chap. XII; Hart's " Why the South failed in the Civil War," in Practi- 
cal Essays on Government. 

1. What is secession ? State the difference between nullification 
and secession. Are either based upon the national theory of the Con- 
stitution ? Why was the Constitution silent on the subject ? What is 
the difference between state rights and state sovereignty ? 

2. Could anything but slavery have caused secession ? Show clearly 
how it led to secession. Can you imagine that the North might have 
seceded ? If so, under what conditions, and on what constitutional 
grounfls ? 

3. How far had the North controlled the central government from 
1830 to i860 ? how far had the South ? Was the victory of the Re- 
publican party a menace to slavery in the states ? (Study carefully 
Republican platform, views of leaders, etc.) 

4. Compare the constitution of the Confederate states with that of 
the United States. In what do they differ principally ? Were the 
states more nearly sovereign in the former ? Compare the Confed- 
eracy with the Union in population, size of army and navy, fmances, 
dependence on outside countries for war necessaries. 

5. What " war powers " were exercised by the President ? WTiich 
ones were unconstitutional ? which ones extra-constitutional ? Is there 
a "law higher than the Constitution," judged by the events from 1850 
to 1865 ? judged by the "presidential dictatorship " ? 

Reconstruction (§§ 205-214) 

a. On the impeachment of Johnson consult Sherman's Recollec- 
tions, I, 413-432, and Blaine's Twenty Years in Congress, II, 341-384, 
on the one hand, and Cox's Three Decades, 578-594, Ross, E. G., in 
Scribner's, XI ('1892}, 519-524, on the other. Consider the view of 



Natiottality and Slavery 179 

Chadsey in his Struggle belween President Johnson and Congress, 
chap. VI. 

1. How were the negroes treated in the South in 1 866 ? What 
new principles did the Civil Rights Bill incorporate into our system ? 
Why was it immediately followed by the fourteenth amendment ? 

2. How did the military reconstruction bills invade the sphere of 
duties and powers heretofore exercised by the state governments ? 
Did Congress have the right to reimpose conditions on the states 
before they were recognized as members of the Union ? 

3. Did the changes of the Civil War and the reconstruction period 
amount to a revolution ? for what reason ? 

4. Make a complete comparison of the Emancipation Proclamation 
and the thirteenth amendment; of the Civil Rights Bill and fourteenth 
amendment. 

5. Make a careful study of the first paragraph of the fourteenth 
amendment. Had there been a United States citizenship before 1868 ? 
If so, in what respects was it different from that after 1868 ? Did Con- 
gress intend to nationalize civil rights by this clause ? What advan- 
tages have we derived from the interpretation placed upon it by the 
Supreme Court in the Slaughter House Cases? what disadvantages ? 

6. Was the electoral commission constitutional ? What was its 
chief duty ? Would it have been a success in Mexico ? in France ? 
Can the difficulties of 1877 recur ? Is the principle of the electoral 
count bill (1886) wise ? (§ 333.) 



CHAPTER IX 

THE NEW NATION 
General References 

Johnston, American Politics, XXIV-XXVII. 

Channin}^, Stuiienl's I/i story, 573-603. 

Montgomery, Studenfs IIisto>y of the United States, 485-542. 

Wilson, Division and Reunion (to 1889), 273-299. 

Wright, Industrial Evolution of the United States, 159-352. The best 
brief account of economic changes since i860. 

Cleveland, Growth of Democracy. 

Carnegie, Triumphant Democracy. 

Boutvvell, The Constitution at the End of the First Century. Under 
an analysis of the Constitution gives the construction placed upon 
the more important clauses by the Supreme Court. 

Tiedeman, Unwritten Constitution of the United States. A very sug- 
gestive little book. 

Personal accounts of Cox, Sherman, McCulloch, and Blaine, as in last 
chapter. 

Appleton's Annual Cyclopedia (1865- ). A storehouse of facts 
and documents. 

Cyclopedic Review of Current History (1890- ). The best con- 
tinuous contemporary narrative. 

Durand, "Political and Municipal Legislation" (1895-1899), in 
A. A. A. 

Whitten, "Political and Municipal Legislation" (1899- ), in 
A. A. A. 

Dunning et al., " Review of Current Events," in each volume of 
F. S. Q. 

Stimson, " Economic and Social Legislation," in Vale Review. 

Shaw, " Current Topics," monthly, in R. of R. 

Summary of Legislation by States, published by the New York State 
Library yearly since 1890. 

Current periodicals. Consult periodical indexes under titles United 
States, Corporations, Railways, Legislation, Suffrage, Strikes, etc. 
180 



The New Nation iSi 

315. Economic Conditions before the Civil War. — All of New national 
our wars have been productive of great changes, not alone conditions 
in our political life, but in the life of the people and con- the war. 
ditions affecting their occupations. The results of the 
Civil War were necessarily more important than those of 
smaller conflicts, and the reorganization following its close 
was not confined to political and social lines, but entered 
into commerce, industry, and other ever}--day affairs. 
Ever)-where, and all the time, this reorganization tended 
to produce a stronger national feeling and a new national 
life. 

In ante-bellum days the country was still largely devoted Ante-beUum 
to agriculture. Manufacturing was on the increase, but no conditions 

, , . , , . , , , unfavorable 

Single plant involved ver}- great capital or commanded an to industry 
extensive market. Few of the railroads crossed from one o"" commerce 
state to another, although there was even then a marked °^^^^^^ 
tendency toward consolidating several small roads into one 
large one. There was almost no national currenc)-, most 
of the coins in use bearing a German or a Spanish-Ameri- 
can stamp; and the bills in use were issued by state banks, 
so that they were subject to great discount outside of that 
state. All of these things hampered the production and 
transportation of goods on a large scale. 

216. Economic Conditions after the "War. — How different All condi- 
was the situation after the war ! The state banks had been !'°°^ ^'^^^^ 
compelled to withdraw their bills from circulation because development, 
of the prohibitory tax of ten per cent placed upon them 
by the central government. The countr}' was flooded with 
greenbacks, of which four hundred and fifty million dollars' 
worth had been printed and paid out by the United States, 
and with national bank bills. Gold and silver were no 
longer used in ordinary- transactions, as a paper dollar was 
legally as valuable as one of silver, though actually worth 
much less. Consequently, prices were high, speculation 
was becoming more common, and large investments of 
capital were constantly being made. The construction of 
a transcontinental railway is evidence of the new spirit 



1 82 



The American Federal State 



Statistics 
showing 
growth from 
i860 to 1900. 

Wright, 
Industrial 
Evolution, 
159-188. 



Formation 
of great 
corporations. 



of the business world. Manufacturing had been stimulated 
by the need of providing our troops with necessaries, and 
in procuring materials for the prosecution of military cam- 
paigns. When peace came, conditions were most favor- 
able to manufacturing; for, during the war, it had been 
necessary to raise revenue by taxes on articles produced in 
this country, and in order to protect home industry from 
too great foreign competition, the duties on goods imported 
had been raised to correspond. So great was the opposi- 
tion to the internal taxes that they were now removed as 
quickly as possible, but no change was made in the duties. 
This assured sufficient protection to warrant the investment 
of still more money in industry. It was customary to form 
companies, incorporated under state law; but the sale of 
stock in these corporations was not confined to a single 
state, nor were its products sold within as limited an area 
as formerly. 

217. Development of Industry and Commerce. — Some 
idea of the tremendous internal development of this coun- 
try since i860 may be obtained by comparing statis- 
tics of that year with those of later dates. In i860 the 
amount of capital invested in manufacturing was almost 
exactly ;^ 1,000, 000, 000, and the value of the product was 
less than ;^ 2, 000, 000, 000. In 1890 the capital was over 
$6,000,000,000, and the products over $9,000,000,000, 
and during the last ten years the increase has been equal 
to that of any previous decade. Our commerce within 
the United States has increased in much the same ratio. 
In i860 our 30,000 miles of railroad received scarcely 
1275,000,000 for transporting freights; in 1880, with 85,000 
miles operated, the gross receipts from this branch were 
$467,748,928. To-day (1901) we have over 190,000 miles of 
line, representing an investment of nearly $12,000,000,000, 
and earning nearly $1,000,000,000 a year aside from 
revenue derived from passengers. 

We cannot expect that this increase in business was 
accompanied with no new methods. For our purpose, it 



The New Nation 183 

will be sufficient to call attention to the great consolidation 
of capital which has made possible production or transpor- 
tation on a large scale. This is no new thing. It has been 
going on all the time, but it has been more rapid since the 
Civil War, and especially rapid during the last two or three 
years. Before i860 the largest railroad in the country 
boasted less than 1000 miles of track. Now there are 
nine companies, each of which control at least 5000 miles 
of rail. Before the war a corporation with capital of 
$1,000,000 was the exception. Between 1898 and 1900 
a large number claiming capital stock of over $25,000,000 
were formed. 

218. The Control of Railroads. — These economic changes Need of 
have been the most characteristic feature of the new nation, control. 
The control of the corporations which have grown up at the 
same time has proved to be a serious problem to both the 
state and the national governments. Many of them are of 
such a character that they either have special privileges 
conferred upon them by law, or have a monopoly of the 
trade in their line, in spite of legislation. 

Since the railroads were the first corporations of impor- state rail- 

tance, state railway commissions were organized as early as ^^y ?°™" 
^ - , , missions. 

1870. They were given power to fix rates and make regu- 
lations; but before long they encountered difificulties j^^-j^J^^ 
because the railroads ran into other states. Attempting to Transporta- 
control the portion of the railroad outside of the state, ''''«. 134-14S 
their acts were reviewed by the United States Supreme 
Court, which declared them unconstitutional on the ground 
that only the central government could regulate interstate 
commerce. Soon after, the recognized need of such inter- 
state control led Congress to pass the Interstate Commerce Interstate 
Act (1887). The purpose of this measure was threefold: commSon 
(i) to see that rates are reasonable; (2) to prevent a rail- (1887), 
road from charging one person more than another for the Das Passos, 
same service, or from asking more for a shorter distance interstate 
than for a longer one; and (3) to prevent combinations of ^^f^ 
railroads for the purpose of "pooling" profits. In order 



1 84 



The American Federal State 



Government 
interference 
in strikes 
(1877, 1894), 

Wright, 

Industrial 

Evolution, 

301-306, 

313-317- 



State law 
regarding 
incorpora- 
tion and 
control. 

Whitten, 
Trend of 
Legislation, 
415-419. 



National 
anti-trust law 
of 1890. 



that this law might not be a dead letter, an interstate com- 
merce commission of five members was appointed, with 
power to hear and decide disputes, and call upon the 
national courts to enforce its decisions. 

In cases of strikes, the state and national governments 
are often asked to interfere. The great railway strike of 
1877 was productive of great disorder, which ceased when 
the United States troops were sent by the President, at the 
request of state governors. During the railway strike of 
1894, the state militia was used in many places, and the 
regulars were sent to Illinois to protect national property 
and the United States mails, in spite of the protest of the 
state executive. 

219. Regulations for Industrial Corporations. — It is 
surprising how many provisions dealing with industrial 
regulation have been inserted in recent constitutions, and 
what a large part of state legislation has been devoted to 
this subject. Incorporation always takes place under gen- 
eral laws, and most constitutions specify that charters may 
be amended or revoked at the wish of the legislature. 
Attempts are made to protect the public by fixing the indi- 
vidual responsibility of the directors, by making companies 
open their accounts to the inspection of those interested, 
and in other ways. A great many commonwealths have 
tried to prevent the further combination of capital, and 
have made drastic laws to control trusts, but usually with- 
out success. More often than not this legislation, hasty, 
ill-considered, and passed in ignorance of natural eco- 
nomic laws, has done harm rather than good. Recently 
there has been a movement to have a large number of states 
adopt the same laws regarding corporations. This shows 
that industry is no longer a state affair, and that national 
action is becoming more necessary. 

According to the Constitution, Congress has almost no 
power over industry, because few corporations are erected 
under national law. In 1890, however, an anti-trust law 
was passed, which attempted to prevent the combination 



The New Nation 



185 



of capital for the control of interstate or foreign trade 
and commerce; but, of course, it does not cover the vast 
number of corporations doing business solely within state 
limits. 

In 1899 a national industrial commission was created 
for the purpose of investigating conditions throughout the 
country and of recommending to the states some plan that 
might be feasible for the control of corporations. 

Combinations of labor, as well as combinations of capi- 
tal, are subject to state supervision. The adjustment of 
difficulties bet\veen employer and the employee is occupy- 
ing a constantly larger place in the work of legislation and 
administration. Those features of strikes which interfere 
with the rights of others, or cause the destruction of prop- 
erty, are prevented by the courts and through the exercise 
of the police power. The prevention of strikes has been 
attempted by the use of boards of arbitration. 

220. The Tariff. — Our business has been greatly, though 
indirectly, affected by the action of the Congress on the 
money standard and on imported articles. Both of these 
subjects have been made prominent in political circles, so 
that many of our elections since the war have turned upon 
them. A brief consideration of the main points of each 
is all that will be given here, as they will be treated more 
fully later. 

The war tariff of 1864 continued to aid the development 
of industr}', and was scarcely changed at all till 1883, when 
many of the protective duties were increased. The opposi- 
tion to this high protection was the basis of the presiden- 
tial elections of 1888 and 1892, the former being won 
by the protectionists who, in 1890, passed a bill placing 
many articles on the free list, but increasing the duties on 
those left. In 1893 a measure ostensibly for revenue only, 
but in the end involving no real principle, replaced the 
McKinley Bill; and, in 1897, this, in turn, gave way to the 
Dingley bill, which was more consistent, but avowedly 
protectionist. 



Stimson, 
Handbook of 
Labor Laio, 
334-347- 

National 
industrial 
commission. 



Control of 
labor dis- 
putes. 

Stimson, 
Labor in 
Relation to 
Law, 78-117. 



Economic 
questions in 
national 
politics. 



The tariffs 
(1864-1897'). 

Cf. kk 539. 
609, 610. 



1 86 



The American Federal State 



The silver 

question 

(1873-1896). 

cf. kk 540. 

599- 



Restrictions 
upon the 
legislatures. 

Cf. \^ 422- 
426. 

Biyce, 33^ 
341. 



221. The Currency. — At the close of the war there was 
no coin in circulation, as we have seen, and it was not 
until 1879 that the United States government dared to 
resume specie payments and redeem its paper in gold. In 
the meantime (1873) a change had been made in the laws, 
by which silver was no longer the subject of free coinage, 
as it had scarcely been coined at all since 1834. When 
hard money began to come into circulation again, there was 
considerable agitation in favor of free coinage of silver 
dollars, and in opposition to the retirement of the green- 
backs. This resulted in the retention of the latter, intended 
at the first to be used only during the war, and in the pas- 
sage of what was known as the Bland- Allison Bill, in 1878, 
making it obligatory for the United States to buy and coin 
at least two million dollars' worth of silver a month. In 
1890, by the Sherman Silver Act, Congress authorized the 
Treasurer to buy at least four and a half million ounces of 
silver a month, but the law was repealed during the panic 
of 1893. In the election of 1896 the chief issue was the 
question of free silver coinage alone or in connection with 
other nations. The commercial sections of the country 
were greatly opposed to any change in the standard, and 
a consideration of free silver was therefore postponed. 

222. The People and the State Constitutions (1860- 
1900). — Besides the changes made necessary by new eco- 
nomic conditions, the state constitutions have been greatly 
developed along lines similar to those in which alterations 
were made before i860. The most notable characteristic is 
the greater part played by the people in government. This 
expresses itself in many ways. The distrust of the legis- 
latures has become even more prominent, so that they are 
prevented in many cases from making laws at all; and every 
time a state adopts a new constitution, it adds a few things 
to the list of subjects for which the legislature cannot 
make special laws. In many states this restriction covers 
at least fifty titles. All of these things mean, of course, 
that the people insist upon having more of the laws sub- 



The Xew Nation 187 

mitted to them for approval. The constitutions are becom- 
ing more and more like codes which need constant revision. 

Many of the states have gone farther. Not only must Direct 
constitutional amendments be submitted to the voters, but ^^^ ^*^°°' 
if a certain per cent wish to have a law voted upon by the hh S^s, 529. 
people before it can be enforced, the legislature in those 
states must submit the law at the next general election. 
This method, called the "referendum," was first used in 
this way in America about 1845; it has been well devel- 
oped in the cantons of Switzerland. At present it is used 
most in the localities of the middle West, and especially in 
connection with matters of finance or local organization. 
South Dakota has recently (1898) applied the method to 
all state laws on petition of five per cent of the voters. 
She also permits the same proportion to suggest laws which 
must be submitted to popular vote. This is called the 
"initiative." 

223. The Suffrage. — Changes in the franchise have been General 

going on all the time. In one way they have helped to changes. 

restrict the right to vote, in another to enlarge it. The Haynes, 

most important change since 1S65 M-as that caused by the ^^K^' 

fifteenth amendment to the United States Constitution, Suffrage, \n 

which made it obligatorv upon the states to extend the suf- -f-*^- Q-'^^^^ 

(1898), 495- 
frage to negroes. But the evils of indiscriminate exten- 512. 

sion have been manifest all over the land; and many of the 

states which formerly permitted aliens to vote as soon as 

they declared their intention to become citizens, or even 

before that, have withdrawn the privilege, though ten still 

permit it. Educational qualifications have become more 

common, and, of late, the requirement is sometimes made 

that the person shall not only read or write, but do it in 

English. 

In the South the whites are struggling with the problem New quaii- 

of how to disfranchise the negroes without violating the fixations m 

° ° the South. 

national Constitution. In 1890 Mississippi, which has a 

population over one-half black, established an educational ^^fj^^^' 

test for voters. In 1895 South Carolina, in which the 



The American Federal State 



Oberholtzer, 
Referendum, 
120-125, 



Woman 
suffrage. 



The Austral- 
ian ballot 
and other 
election 
regulations. 

cf. h\ 523- 

525. 



negroes outnumber the whites nearly two to one, adopted a 
more complicated arrangement. No one could vote unless 
he held property or could read, but persons who could 
understand a part of the Constitution when read might vote. 
Louisiana, the third state with a smaller proportion of 
whites than blacks, went even farther (1898). A constitu- 
tion (which was not submitted to the people for ratification) 
requires the alternative property or educational qualifica- 
tion, except for those who themselves voted or whose ances- 
tors voted before January i, 1867, and for aliens naturalized 
before the constitution went into effect. The Georgia 
legislature (1899), by an overwhelming majority, refused 
to submit a similar amendment. North Carolina (1900) 
adopted one almost identical with that of Louisiana, except 
that education only is required. 

During these years there has been a great deal of agita- 
tion over woman suffrage. A great many constitutional 
amendments have been submitted to the voters, but in most 
cases they have been defeated. More than half of the states 
allow women taxpayers to vote in certain cases, but only 
four, Wyoming, Colorado, Idaho, and Utah, give the right 
for state and national elections. 

224. Reform of Elections. — During the last twenty years 
a very earnest attempt has been made to avoid some of the 
dangers to which democracy has been especially subject. 
The chief of these reform movements dealt either with the 
elections or the civil service. The open ballot of the for- 
ties was replaced by one much more guarded, and, finally, 
by a system known as the Australian ballot, by which the 
chances of bribery and corruption have been reduced to a 
minimum. Primary elections have been brought under the 
supervision of the law, and an effort is being made to im- 
prove them. Candidates have been hedged around with 
restrictions, and are often compelled to render account of 
their election expenses. But so far, complete success has 
not attended the control of elections aside from the actual 
voting. 



The New Nation 189 

225. Civil Service Reform. — From what has already been Progress 
said, and from what we know about the "spoil system," we ^^^J^'^Jg^ 
can readily appreciate how much harm it has done good state, and 
government. " Civil service reform " has been the watch- the localities, 
word of a large class of our best citizens, who have given Cf. \\ 345, 
attention to politics. The national administration was the ^^^' ^^^' 
first attacked. For three years, under Grant, examinations 

were required of a few officials, but real progress dates 
from the passage of the Pendleton Act, in 1883. Since 
that time, by Congressional legislation or executive ordi- 
nance, about forty per cent of the nearly two hundred 
thousand United States government positions have been 
placed on the classified lists, and are now filled according 
to merit. In the state, county, and municipal govern- 
ments the same principles have been applied to some 
extent; but the vast majority of the two or three hundred 
thousand appointees, besides those in schools, have no 
higher qualifications than friendship and influence. 

226. Cuba and the United States. — During the whole of Relations 
the nineteenth century the affairs of Cuba and the United '^^""S nin^ 

-' teenth cen- 

States have been more or less interwoven. As early as 1825 tury. 
diplomatic suggestions of our government had an indirect ^^^ ^ g 
influence upon Spain's retention of her West India posses- in Harpers, 
sions. Twenty-three years later the Secretary of State ^'°'' ^' ^^~ 
offered to buy Cuba for $100,000,000. In the ten years' 
revolution, which began in 1868, the United States was 
called upon several times to see that American interests 
were protected. After 1878 investment by our citizens 
had increased rapidly, and when insurrection broke out 
again, in 1895, it meant great loss and privation to many 
living in the United States. This condition of affairs, 
coupled with the harsh " reconcentrado " policy of Weyler, 
led Cleveland, in two messages, to assume a bold attitude, 
and, after urging Spain to submit the dispute to arbitration, 
to state that if the war were continued, it might become 
necessary for the United States to interfere. Feeling 
against Spain had grown very strong before the destruction 



190 



The American Federal State 



The treaty 
with Spain 
(1898). 



The Philip- 
pine rebel- 
lion. 



Diflficulties 
and impor- 
tance of 
colonial 
questions. 



of the Maine (February, 1898) and the report of the com- 
mittee of investigation that the vessel had been blown up 
by a submarine mine. War now seemed inevitable, and, 
on April 25, 1898, Congress declared that a state of war 
existed between the United States and Spain. Six days 
before, a joint resolution had been passed that Cuba 
should be free and independent, and that the United 
States should not interfere with government by her own 
people. 

227. Acquisitions of Territory. — During the war Con- 
gress voted to annex Hawaii, which had thrown off her 
monarchical government in 1893, and had sought annexa- 
tion by means of treaty. When hostilities with Spain 
ceased, we were in possession of Porto Rico, a large part 
of Cuba, and the territory around Manila. In the negotia- 
tions we sought to gain Cuba for the Cubans, without the 
Spanish-Cuban debt, and Porto Rico, the Philippines, and 
some smaller islands for ourselves. The treaty, in its final 
form, conceded everything the Americans asked, the Span- 
ish rights in the Philippines being ceded for ^20,000,000. 
The ratification of the treaty met with opposition in 
the Senate, from those who feared the dangers which co- 
lonial possessions so far away would bring; but the nec- 
essary two-thirds was finally forthcoming. During this 
debate in the Senate an attempt was made to pledge 
the nation to grant the Philippinos complete rights of self- 
government, but it was unsuccessful. Meanwhile the 
administration had been dealing with the double problem 
of crushing the Tagal rebellion, headed by Aguinaldo, and 
of finding such a government for the different islands in 
the Philippines and for the West Indies as should secure 
the civil rights of the inhabitants, guarantee protection of 
property, and yet leave the people such a share in govern- 
ment as they seem fitted to use. 

The proper control of these colonies, and the altered 
international relations which the possession of this out- 
side territory will bring us, bid fair to outrank, in popular 



The New Nation 



191 



interest and in real importance, all other questions now 
confronting the national government. 

228. The Constitution at the End of a Century. — What 
a difference there is between the United States of 1789 and 
that of to-day, and yet what a similarity ! The similarity 
is in governmental forms and political theories; the differ- 
ence in the spirit which animates society and politics. But 
the spirit is no new creation, it is an evolution that finds 
its beginning not even in the revolutionary epoch, but in 
the earliest colonial settlements. 

In 1789 we had a federal system nominally the same as 
it is now; but then we had States and a nation, now there 
is a Nation and states. Then all spoke of the states as 
sovereign, and of the central government as sovereign only 
in regard to the powers conferred upon it. A hundred 
years ago the right of secession was practically claimed by 
every section ; to-day no state would dare to attempt to call 
withdrawal from the Union legal secession. In the early 
years of our history much was heard about nullification, but 
our present interest in the word is purely historical. What- 
ever we may think about the permanence of the states, one 
thing is assured: the Union will stand, growing stronger 
with the onward march of the centuries. 

229. The Central Government. — The contrast between 
the United States government in 1789 and in 1900 is most 
striking. In 1789 none of the three departments had 
tested its strength, and none knew whether it would prove 
able to perform the tasks assigned it. Few people expected 
to see the old Confederation, with its lack of power, its 
failure to inspire respect, its impaired credit, and its over- 
whelming debt, replaced by a new government that should 
show itself competent just where the old Congress was 
inefficient. To the people of that day the central govern- 
ment was far removed, a vague impersonal being much more 
of a necessary evil than a permanent good; and, if too 
powerful, an engine for the destruction of liberty. That it 
did not inspire awe, perhaps not respect, is evident from 



A century's 
changes in 
the spirit of 
government. 

Wilson, 
Cong. Gov't, 
13-24- 



Changes in 
the federal 
system. 



Tte national 
government 
in 1789. 

Bryce, 278- 



Cf. Wilson, 
Cong. Gov't, 
28-57. 



192 



The American Federal State 



Its position 
to-day. 



The separa- 
tion of 
departments 
maintained. 



Some 

characteris- 
tics of the 
unwritten 
Constitution. 

Bryce, 271- 
274. 



the events connected with the first Congress and the first 
inauguration. We cannot imagine to-day a meeting of 
Congress called for the 4th of March which does not take 
place until the 6th of April, because no quorum is present; 
nor can we think of an inauguration postponed eight weeks 
beyond the day set. For such a state of affairs poor roads 
and adverse winds cannot be held responsible by the most 
charitable historian. 

The fears which the people had of the Congress and the 
President, as well as the dangers of impotent government, 
were not overcome in a day. But the ship of state has 
gallantly weathered every storm. It has shown its own 
strength and won the confidence of its citizens. We do 
not dread it more than the other governments under which 
we live, and our attachment to it to-day is more real and 
pronounced. 

In this development a great many provisions of the paper 
constitution have been ignored or supplemented by law 
and custom, yet we still find that' the separation into three 
departments, largely independent, is no fiction. The legis- 
lative department is necessarily the most powerful, as it 
has the most important work to do; but it has never subor- 
dinated the others entirely to itself. Each has maintained 
a position essentially that which the "fathers" expected. 

230. The Unwritten Constitution. — We have already in- 
dicated how the federalism recognized by the Constitution 
has been modified, but several changes of great significance, 
though more specific, deserve mention. The most impor- 
tant characteristic is the general tendency toward a liberal 
construction of the written Constitution, covering such sub- 
jects as the acquisition of territory, the making of inter- 
nal improvements, and the issuing of paper money, none 
of which are authorized in that document. Since 1800 
the President has not been chosen by electors exercising 
independent judgment, but by persons representing politi- 
cal parties, and now chosen by the qualified voters of each 
state. They do no more than register the wishes of the 



The New Nation 193 

majority of those voters. A President may be reelected 
once, but not twice. His power in time of war is all that 
the most visionary opponent of constitutional ratification 
may have imagined. The executive power is centred in 
him, i.e. all persons belonging to the administration are 
nominally appointed by him, and are really responsible to 
him. But in his appointments he is obliged, by custom, 
to follow the dictates of congressmen in filling most of the 
offices in the United States, though the Senate never refuses 
to confirm a member of the Cabinet. The Cabinet is a 
body practically unrecognized by the Constitution. Cus- 
tom has determined that it shall be composed of the heads 
of the departments, who have no seats in Congress and do 
not direct legislation, as in England. As a Cabinet, they 
are an advisory executive body, but the President is not 
bound to follow their advice; as heads of departments, they 
are the administrative agents of the President. 

Our government has become one by the people acting The political 
through political parties. The President is a party leader, f^^^gj-lnthe 
Senators and representatives belong to some national party government 
nominated according to well-recognized rules. The speaker °^ *^ United 
of the House of Representatives, an officer barely mentioned 
in the Constitution, has developed tremendous power over 
the organization and legislation in the House because he 
is the party leader of the majority. Only the courts are 
free from partisanship, and that is because they have vol- 
untarily and consistently refrained from considering politi- 
cal questions as such. Yet even the judges always belong 
to the same party as the President who appointed them. 
In the states and the cities, the organization of the party 
machinery needed for national elections has made it neces- 
sary to fight out every contest on party lines. 

These are a few of the changes wrought in the national 
government by the unwritten Constitution. 

231. Popular Cooperation in Government. — In 1789 the Class rule 
United States was governed by classes. People could not *" eighteenth 

^ J J^ century. 

vote unless they owned a certain amount of property and 



194 



The American Federal State 



Lack of 
suffrage 
restrictions 
at present. 



had been for a long time residents of the state and district. 
Officials were by law usually required to own a much greater 
amount of property, and by custom they were ordinarily 
drawn from certain families. Except in the New England 
township, the local government was by no means popular, 
for elsewhere the town, parish, and county officers were 
either appointed by the state governments or chosen by a 
few persons. 

To-day suffrage is everywhere practically universal. 
Religious qualifications were long ago abolished, when 
State and Church were separated, but the nation has become 
more rather than less religious. The few restrictions of 
time, residence, and citizenship for electors are essentials 
of good government. Office-holding is open to any one 
who has the personal qualities needed for winning popular 
favor. All of the chief positions in national, state, and 
local governments are filled by popular election, and changes 
in fundamental laws must meet with approval of the voters. 
The people cooperate in government largely through par- 
ties, but the control of those parties belongs to them; for 
no one that seeks to become a party dictator or "boss " can 
maintain his position in the long run without popular sup- 
port. We have now as truly a government " of the people, 
by the people, and for the people " as ever existed, with 
most of the benefits and most of the faults inherent in 
democratic rule. 

What that government is like we shall now proceed to 
consider a little more fully. 



Economic Features of the New Nation (§§ 215-221) 

1. Look up the income taxes and taxes on production during the 
Civil War; note the items included and rates levied. Why was there 
a great opposition to these internal taxes ? Should the duties on im- 
ports have been reduced at once to correspond to the reduction on 
internal revenue ? 

2. Why are monopolies dangerous ? Name any railways that 
might be considered monopolies. Are the evils of monopolistic con- 
trol averted in these cases by government control ? 



The New Nation 195 

3. How is a corporation formed in your state ? Are there any pro- 
visions in state law that the capital stock must be paid up in full ? 
What is meant by watered stock ? Why may watered stock be in- 
jurious to the investor, to the corporation, and to the public ? 

4. Give, in outline, a history of our tariffs, indicating the principal 
objects upon which duties have been placed, and giving an idea of the 
rates. 

The States (§§ 222-225) 

1. What is the earliest instance you recall of the referendum in 
America ? Give a short account of the development of the idea that 
the people should ratify laws framed by legislatures or conventions. 
Has the referendum ever been used in connection with national 
affairs ? Account for your last answer. 

2. WTiat are the advantages of universal suffrage ? the disadvan- 
tages ? Is the suffrage of the present likely to become more or less 
restricted ? In your opinion does the Louisiana constitution violate 
the United States Constitution ? Who will decide whether it does, 
and in what way will the matter be tested ? Give arguments fur and 
against woman suffrage. 

3. Give a history of the ballot. To what extent was it used in the 
colonies ? What was the method of voting in Greece, in Rome, in 
England before 1884 ? 

Foreign Affairs (§§ 226-227) 

a. Cuba and the United States during the nineteenth century. 
Curtis, United States and Other Powers, index under Cuba ; La- 
tane. United States and Spanish America, chap. II; Callahan, Cuba 
and International delations. 

1. Make a study of the Spanish government in Cuba during the 
nineteenth century. What forms of taxation existed ? What share 
did the people have in the government ? In what respects was the 
government of Cuba better or worse than those of the South American 
republics ? 

2. Name the principal causes of the Spanish W^ar. Trace, if possi- 
ble, the growth of the idea of expansion. Was it originally the wish 
of the people or of the administration ? What else could the govern- 
ment have done ? 

Tae Constitution at the End of a Century (§§ 228-231) 

a. Changes in the Constitution since 1789 are treated by McMaster, 
With the Fathers, 182-221; Boutwell, Constitution at the End of the 



196 The American Federal State 

First Century ; and Tiedeman, Unwritten Constitution of the United 
States. 

b. The national government of to-day is pictured by Bryce, chaps. 
IV, V, IX, XI-XIII, XVII-XXI, and by Ford, American Politics, 
chaps. XVIII-XXII. 

1. Compare the forms of government, the powers of the different 
departments, and the part played by the people in governing in Great 
Britain and the United States in 1800 and in 1900. 

2. Is our unwritten Constitution more or less important than the 
written one ? How did the two compare in 1789 } Which is growing 
more rapidly ? 

3. Is it desirable to keep the three departments of government as 
nearly coordinate as we can ? Is it going to be possible to do so ? 
What besides provisions of the written Constitution have helped to 
keep the executive and judicial departments independent of Congress ? 



PART II 
GOVERNMENT 

CHAPTER X 

GENERAL CHARACTER OF AMERICAN FEDERALISM 
General References 

Burgess, The American Commonwealth {Political Science Quarterly, 

I. 9-35)- 

Crane and Moses, Politics, 223-264. On the tendencies of feder- 
alism. 

Hinsdale, The American Government, 117-136, 236-247, 336-371, 
418-422. Hinsdale gives excellent explanations of the principal 
features of the national government especially, with many his- 
torical references. 

Bryce, The American Commonwealth (abd. ed.), 214-287. The best 
book for consultation on this chapter. Unexcelled for reference 
on all of Book 11. Emphasis is laid on the government as it is 
and upon the methods of operation. 

Wilson, The State, 467-550. An outline of particular value on the 
states. 

Story (Cooley), Commentaries on the Constitution, chaps. XXXII- 
XXXV, XLIV-XLVII. 

The Federalist, Nos. 39-46. The Federalist should be consulted on 
all of Book II as showing what was expected of the central gov- 
ernment in 1788. 

Burgess, Political Science and Comparative Constitutional Law, I, 
142-154, 184-252. Volume II gives a very valuable comparative 
study of the governmental organization and powers in the United 
States, France, England, and Germany. 

Hart, Federal Government. Summarizes and compares different fed- 
eral governments. Appendix A gives detailed comparison. In- 
valuable for reference. 

197 



198 



The American Federal State 



Ways in 
which mod- 
ern States 
have been 
consolidated. 



The decen- 
tralizing 
forces over- 
come. 

Johnston, in 
Lalor, ni, 
787, 788. 



232. Centralizing Tendencies in Modem History. — All 
modern States have a central government and local govern- 
ments. In some, the local governments are subordinate to 
the central government, and we then called the State cen- 
tralized. In others, the local governments are practically 
independent of the central governments, i.e. neither one 
is controlled by the other, but each is directly responsible! 
to the people. Most States at the present time are central- 
ized, but they have not always been so. Almost without 
exception the local districts whose government is now 
completely under the central government were once more 
or less independent, as were the counties of Kent and Wes- 
sex in England, or Venice and Modena in Italy. But this 
independence was not lost all at once. The process by 
which these little states were united into large States was 
a slow one, often covering centuries. The unions have 
been largely voluntary, but they may have been entirely 
involuntary. The small states usually at first retained many 
privileges, as evidence of their former independent position, 
especially if they were consulted when they were joined 
to the large State. In many instances several small states 
united in a loose bond, or league, for protection against 
common danger. But these leagues have been transitory. 
Although the people were more attached to the small states 
than to the league, and although the small states at the 
beginning had more power than the central government, 
forces favoring decentralization have been no match for 
those in the opposite direction, and in time centralization^ 
has won, a large State has been formed, and the central 
government has grown stronger and stronger. 

233. Centralization in the United States before 1790. — 
The history of the struggle between centralizing and decen- 
tralizing forces in this country has already been discussed 
under the development of nationality. As elsewhere, the 
small states were formed before the large one was organ- 
ized. During the colonial period these small political 
societies were unconnected with each other, except through 



General Character of American Federalism 199 

England. Their first union (the Confederation) was a / 
league in which the states controlled the central govern- j 
ment. This did not prove to be satisfactory, and after an ■ 
existence of less than ten years an effort was made to replace ^ 
it. Now, it was unreasonable to expect that a nation with 
a strong central government would be developed in a single 
decade, particularly when we consider how strong was the 
love of local self-government in America. In consequence, 
as a league had been found unsatisfactory, and as popular 
sentiment was strongly opposed to a powerful central gov- 
ernment, a compromise was necessary. There was, accord- / 
ingly, formed a Federal State, in which there should be * 
two kinds of government, each exercising certain powers 
of sovereignty, and supreme within its own sphere. But 
the creation of this Federal State meant that every citizen 
living within the United States was not only a citizen of 
the state (commonwealth) in which he resided, but of the 
United States as well. He was bound to obey the laws of 
his state with regard to certain matters, and those of the 
United States with regard to certain others. He had cer- 
tain rights which he possessed because he was a citizen of 
a state, but different rights which were the result of United 
States citizenship. 

234. Centralization since 1790. — If States are constantly integration 
growing, and if growth has everywhere else favored cen- of national 
tralization, we may well ask whether the Federal State of 
to-day is the same as that of 1790. The answer is clear if ^^^ i^es 
we have followed the historical discussion of Part I. Theo- Politics, 
retically, the Federal State has changed little. Actually, chap.xvill. 
there has been a great shifting of power. The balance 
between the nation and the states has never been perfectly 
maintained. At first the states were much more impor- - 

tant, because of their former serai-independent position. 

But new generations came upon the scene, who cared less 
for the history of their state than for the common interests 
which existed in their day. Gradually the central govern- - .^ 
ment has added power after power, not necessarily at the 



200 



The American Federal State 



The national 
Constitution 
and centrali- 
zation. 



I 

f 

Fair national 
efficiency 
combined 
with local 
autonomy, 

Sidgwick, 
Politics, 516- 
519. 

Bryce, 248- 
253. 



expense of the states, for the Constitution has guaranteed 
the states full control within their own sphere of govern- 
ment, but because the nation and national interests are 
now much more important than the state and local affairs. 
Really, the states have been growing all the time, but the 
nation has grown so much more rapidly that when we 
compare the two, the states seem to have dwindled. 

In this connection a word ought to be said about the 
national written Constitution, which, in a sense, c reated 
this Federal State, and which has been, more than anything 
else, responsible for its continuance. How perfect the 
division was which the Constitution made when it sepa- 
rated the sphere of the nation from that of the states is 
shown by the fact that the division is now almost the same 
as a hundred years ago, in spite of the great political, 
social, and economic changes of the century. This divi- 
sion was at the beginning an advantage to the central gov- 
ernment, because the states were unwilling to leave to the 
United States government control over all national affairs. 
During the last half century the division has favored the 
states in two ways: (i) because we have at present more 
interests in common than a hundred years ago, and occasion- 
ally these interests are of such a nature that the Constitution 
leaves them to the states, although we feel now that they 
properly belong to Congress. (2) As the national govern- 
ment has grown stronger, it would have encroached upon 
the sphere of the states but for the written Constitution. 

235. Negative Advantages of Federal States. — The great 
advantage of federalism is that it combines an efficient 
central government, controlling those matters of unques- 
tioned common interest with complete self-government in 
the states regarding all other subjects. It would be almost 
impossible, if indeed it were desirable in a country so ex- 
tensive as ours, to give the national government the right 
to regulate all affairs, general and local. If laws had to be 
made for localities, as is done in England and in France, 
especially if accompanied by the administrative centraliza- 



General Character of American Federalism 201 



don of the latter countrj', the burden would be greater than 
the national government could probably bear. But even 
if a centralized government were possible, it could not 
properly care for the interests of ever}' locality; and, more 
than all else, it would leave to the people a smaller degree 
of local self-government, which has always been the most 
effective spur to political interest, and the great bulwark of 
political and civil freedom. 

One of the great faults of federal systems in general is 
that they tend to break up into sections. Under a central 
government exercising powers now belonging to the states, 
there would be much greater disaffection in different parts 
of the Union than under the existing system, and the danger 
of actual separation — for legal secession is no longer pos- 
sible — would be much greater than at present. Again, if 
national laws were to be made for subjects that are now 
under the control of the states, our own histor}' and the 
historj' of Europe show that to have good government under 
those laws they should be administered by national officials. 
While the choice of these might be left to the people of a 
localit}', the officials would have to be responsible not 
to that locality, but to the central government. To call 
such a system local self-government, would be hardly less 
than farcical. 

236. Positive Advantages of Federalism. — The advan- 
tages of a federal system are, of course, more clearly 
shown in the gains we have made than in the dangers we 
have avoided. Such governments as we possess at the pres- 
ent time demand a great amount of political intelligence, 
and have produced a degree of popular knowledge regard- 
ing political affairs among our citizens that is the surest 
guarantee that popular government will be good govern- 
ment. This is a direct result of leaving to the state com- 
plete autonomy, for the part played by the voting citizen 
in the conduct of state and local affairs is incomparably 
greater than that taken by a citizen of any European 
country in all of his governments. 



Dangers of 

secession 

avoided. 



Civic advan- 
tages of local 
autonomy. 

De Tocque- 
vil'.e, Democ- 
racy in 
America 
(Gilman's 
ed.). 
I, 107-12E. 



202 The American Federal State 

Political But aside from the advantage derived through the greater 

and"x"eri-^ political intelligence of the voter, is the gain that has come 
ence of the from the experiments made by the states in new fields, 
states. 'j-jjg national progress that has come from innovations, 

tried by a few states, found satisfactory, and afterward 
adopted by the other states, can hardly be estimated. It 
is sufficient for our purpose to compare the actual exten- 
The suffrage, sion of the franchise with what would have been possible 
had suffrage been regulated by national law, bearing in 
mind that it is illustrative of a hundred and one other sub- 
jects of more or less importance. From the historical 
sketch of Part I it must be evident that if the states could 
have made no laws regarding the franchise, many of the 
reasons that led the newer states to adopt manhood suffrage, 
even during the eighteenth century, would have had no 
influence whatever. The West adopted universal suffrage, 
principally because greater social equality existed there 
than in the East, and political equality was therefore 
natural. Then the West was anxious to aid in the devel- 
opment of its resources by attracting immigrants from the 
other states and from Europe, and the right to vote proved 
a very great inducement. The East was, consequently, 
obliged to grant similar privileges. Now, if the franchise 
had been regulated by national law, the older states would 
have compelled the central government to base suffrage on 
property. The social equality of the West could have 
exerted no influence till the West was as populous as the 
East, and population in that section would have increased 
less rapidly than it did, because the West could not have 
offered the right to vote as a bid to newcomers. When 
we realize that as late as 1840 more than one-half the people 
of the United States actually resided in the thirteen origi- 
nal states, we can realize the significance of this. We must 
not forget, however, that even the old states would un- 
doubtedly, in time, have agreed to a modification of the 
suffrage, especially as agitation in the newer states would 
have favored its extension; but these changes must have 



General Character of American Federalism 203 

occurred much later than they did even in the East. From 
this single instance we can see the tremendous influence 
exerted upon political and social progress by the federal 
system. 

237. Disadvantages of our Federal System. — The disad- inequalities 
vantages of our system are inseparable from the advantages. '" *^'^'^ "^^^'^ 
It is impossible to separate the powers of government into states. 
two sets, and distribute those powers to different govern- ^.^ g 
ments, and yet have a central government as efficient in 243-247. 
the conduct of all national affairs as a highly centralized 
national government would be. For example, a state may ' 
greatly restrict the privileges of the citizens within its 
boundaries, and yet the United States government cannot 
interfere unless the state has infringed upon the rights which 
the citizen has by virtue of his being a citizen of the United 
States, or unless the state took away his rights as a citizen 
of that state "without due process of law." 

When the United States government makes a treaty with Weakness of " 
a foreign power, it is quite likely that some matters which *^^ national 

11 1 -n 1 • 1 1 TTT government. 

seem to belong to state law will be considered. We are 
under obligations to the nation with which the treaty is 
made to see that the treaty is enforced; but if the United 
States authorities try to administer these parts of the treaty, 
they are thought to exceed their powers; so it is left to the 
state officials, who execute them or not as they see fit. In 
the New Orleans difficulty (1891), where several citizens 
of Italy were killed by a mob, the Italian government was 
informed that the murderers must be punished by the state 
of Louisiana, and that the United States had no jurisdic- 
tion in the matter; and this was done, when we had a treaty 
with Italy guaranteeing the rights of her citizens in this 
country, and in spite of the provision of our Constitution 
which makes treaties part of the supreme law of the land. 

Probably the greatest disadvantage is that growing out Increasing 
of our continually changing economic and political con- ^^^.^ °^ 
ditions. We cannot draw between the state and national legislation. 
spheres of government a line that will be permanent. 



204 



The American Federal State 



Enumerated 
and residu- 
ary powers. 

Hinsdale, 
kh 225-233. 

Bryce, 325- 
232. 



Owing to the rigidity of the national Constitution, it is 
impossible to change the line with changing conditions. 
The liberal construction of the Constitution does this to 
some extent, but within certain limits. The central gov- 
ernment has been powerless to enact a national divorce law, 
although the need of uniform legislation of this subject is 
fully recognized. At the present time, commissions from 
different states are constantly being held in order to arrange 
some plan by which the differences between the legislation 
of the states may be minimized. Were it not for the fact 
that the general principles underlying state laws are every- 
where the same, and that there are but four or five groups 
of states with any great differences in detail, some action 
by an outside authority would be necessary for the proper 
conduct of ordinary business. In other words, if state 
lines are not prominent in everyday affairs, they must not 
mark important boundaries of legal systems, or they will 
have to be removed. 

238. General Distribution of Powers. — After this con- 
sideration of the general characteristics of centralization 
and federalism in this country, let us proceed to go a little 
more into detail, in order to discover just what part of the 
work of governing is left by the people of the American 
Federal State to the national government, and what part to 
the state governments, with the limitations placed upon 
each. We find that the national Constitution of 1787 and 
its amendments define pretty clearly the sphere of the 
national government, and suggest the sphere of government 
left to the states. In that instrument, the attempt is made 
to grant the central government all powers that the states 
could not satisfactorily exercise, because united action was 
necessary. From the nature of the case, these powers 
belonging to the United States government were consid- 
ered delegated, and were therefore enumerated, while those 
left to the states were to include all others. The latter 
are sometimes spoken of as residuary or iftheretit powers. 
This does not mean, as many have interpreted it, that 



General Character of American Federalism 205 

because the state possessed all powers not delegated, that 
the state was therefore sovereign. It would have been 
unwise, if not impossible, to enumerate all the powers of 
both state and national governments; and the much simpler 
plan was adopted of stating, in general terms, those classes 
of powers to be exercised by the national government. 

We may therefore distinguish the following classes of Classes of 
governmental powers : — powers. 

I. Those granted exclusively to the national government 

by the Constitution of the United States. i 

II. Those reserved exclusively to the states. 

III. Those powers exercised by either the nation or the 
states, usually called concurrent. 

IV. Powers denied to the national government by the 
Constitution. 

V. Powers denied to the states by the national Consti- 
tution, or to any particular state government, by the 
constitution of that state. 

239. Sphere of National Government. — The sphere of Expressed 

national government, in consequence, includes both exclu- ^"'^ implied 

° ' -a ' powers, 

siveand concurrent powers; but these are always delegated. 

Yet delegated powers may be either expressed or implied 
powers. No one nowadays denies that the United States 
government has the right to supplement the powers ex- 
pressly stated in the Constitution, by such means as are rea- 
sonable and wise, to carry out these powers. That is, we are, 
in practice, broad constructionists of the phrase that Con- 
gress has the power " to make all laws which shall be 
necessary and proper for carrying into execution the fore- 
going powers [Constitution, Article I, Section YIII, 1-17], 
and all other powers vested by this Constitution in the 
government of the United States or in any department or 
officer thereof." 

Nevertheless, it is generally admitted that the United Exclusive 
States government does not have exclusive powers, unless Po*'^'^- ; 
the Constitution expressly states that the power granted to \ 

the United States government is exclusive, or unless a ^ 



206 



The American Federal State 



Concurrent 
powers. 



Powers 

delegated 
by the 
Constitution. 

Hinsdale, 
k\ 341-418. 



power given the United States government is, at the same 
time, denied to the states, or unless, from the very nature 
of the power, it could not be exercised by both the nation 
and the states. 

The powers are concurrent if they are simply granted to 
the United States government without being denied to the 
states. 

240. Powers exercised by the United States Government, 
— In order that the central government might be capa- 
ble of maintaining an independent existence, it was given 
power to collect taxes of different kinds, almost without 
conditions. That crises might be met for which ordinary 
revenue is insufficient, power to borrow money was con- 
ferred. All care of international relations was given the 
United Stat/s government, and these powers were denied 
to the states in order that we should not be "one nation 
to-day and thirteen to-morrow." These included the right 
to send and receive ambassadors, make treaties, regulate 
foreign commerce, declare war, and protect our interests 
by raising an army and navy. All commercial interests 
not belonging to a single state were intrusted to the cen- 
tral government. Among these were the regulation of 
interstate commerce, making uniform such necessities 
as coin, weights and measures, and action regarding bank- 
rupts. Domestic peace was assured by the control of the 
army and by the organization and use of the militia to 
execute laws of the Union, to suppress insurrections, and 
to repel invasions. Provisions were made for the punish- 
ment of crimes against the United States, or any of its laws, 
and for the proper enforcement of United States authority 
without the use of military power. 

Territory may be acquired and governed, while the con- 
ditions under which new states may be admitted to the 
Union are under national control. In order that these 
powers should be real, the Constitution gave Congress the 
right to make the "necessary and proper" laws mentioned 
in the last section. This, coupled with the judicial 



General Character of Americayi Federalism 20/ 

'•ight to interpret the Constitution and the laws of the 
United States, has been ample authority to maintain and 
to extend the power of the United States government. 
Finally, the Constitution, the laws of the United States, and 
treaties are the supreme law of the land, and state laws 
-rontravening these are null and void. 

241. Powers concurrently exercised by the United States Taxation. 
or the State Governments. — Not all of these powers we 
have just enumerated are exclusive. If we apply, as a test, 
the criteria of exclusive powers given in section 239, 
we find that the general power of taxation may be exercised 
by either the central or the state governments. Yet there 
are limitations placed upon either one or the other in 
regard to certain kinds of taxes, e.g. the United States 
government cannot levy direct taxes except in proportion 
to the population, neither can it lay a duty on exports from 
the states at all, nor tax state property. The states cannot 
tax external commerce except with the consent of Congress 
and for the national treasury, nor can they tax national banks 
or national property. Otherwise, either government may 
tax what it pleases or borrow money, and it is only by 
custom that the taxes do not overlap. 

Several classes of concurrent powers are those which are Bankruptcies 
left to the regulation of the national government, but in ^° ™' ^''^' 
which the states may legislate in case the United States 
fails to take any action. The subject of bankruptcies 
offers many examples of this state of affairs, for Congress 
has not seen fit to maintain a national law during most of 
our history, so the states have in the interim passed laws 
suited to their own needs; but these become invalid as 
soon as the central government acts. The case of the 
militia is somewhat similar. Many details of the elections 
of representatives and senators may be controlled by Con- 
gress, but in default of national laws the states do as they 
please. 

In the concurrent jurisdiction of the United States and United states 

■' and state 

State courts we have an instance similar to these last classes, courts. 



. 208 



The American Federal State 



General 
character of 
state powers. 

Wilson, The 
State, W 
1088-1095. 



Private and 
criminal law. 



Administra- 
tive and 
socialistic ■, 
functions. ' 



This jurisdiction is concurrent if it comes within that con- 
ferred by the Constitution upon the national courts, except 
for the cases over which the Supreme Court has original 
jurisdiction or the inferior courts are given exclusive 
jurisdiction by act of Congress. 

242. Sphere of State Activity. — While the states are 
excluded, either by express prohibition or by implication, 
from the greater part of national affairs, they control all 
other subjects of government except those denied to all 
governments, and consequently reserved to the people. 
Lest there should be doubt in any one's mind on that 
point, the tenth amendment says, "The powers not dele- 
gated to the United States by the Constitution, nor pro- 
hibited by it to the states, are reserved to the states 
respectively or to the people." In this amendment we 
find given the means of determining whether a power is 
rightfully exercised by a state, and this is done by finding 
out what does not belong to the state. If a power is given 
to the central government alone, or if it is prohibited to 
the states by the Constitution, it cannot be used; all other 
powers belong to the states, and can be exercised by the 
state governments unless the state constitutions forbid. 

This apparently vague and indefinite field in which the 
state is supreme is one of great importance, not only 
from the variety of subjects included, but from their per- 
sonal relation to the individual. Practically all matters 
belonging to the criminal and to the private law are 
regulated by the states, including laws regarding prop- 
erty and the business and personal relations of one 
individual to another. 

The state has complete charge of all local government, 
of education, of the elective franchise, of most corporations, 
police dirties, marriage and divorce, the poorer and delin- 
quent classes, and public health. It is constantly brought 
into close touch with the individual. Legislation on these 
subjects, and the administration of the laws made upon 
them, may be left by the state to the state government or 



General Quiracter of American Federalism 209 

the local governments; but in any case the control of the 
state over all of them is exclusive and absolute. It is in 
addition to the concurrent powers already mentioned. 

The following passage from Wilson {The State, section 
1095) shows clearly the importance of the state sphere : — 

" A striking illustration of the preponderant part played by State A compari- 
law under our system is supplied in the surprising fact that only ^^^ '^^'^'^ 
one out of the dozen greatest subjects of legislation which have ^^° ' 
engaged the public mind in England during the present century 
would have come within the powers of the federal government 
under the Constitution as it stood before the [Civil] War, only 
two under the Constitution as it stands since the addition of the 
war amendments. I suppose that I am justitied in singling out as 
these twelve greatest subjects of legislation the following: Catholic 
emancipation, parliamentar)' reform, the abolition of slaver}-, the amend- 
ment of the poor laws, the reform of municipal corporations, the repeal 
of the corn laws, the admission of Jews to Parliament, the disestablish- 
ment of the Irish church, the alteration of the Irish land laws, the 
establishment of national education, the introduction of the ballot, and 
the reform of the criminal law. Of these, ever}' one except the corn 
laws and the abolition of slaver}' would have been under our system, 
so far as they could be dealt with at all, subjects for state regulation 
entirely; and it was only by constitutional amendment made in recog- 
nition of the accomplished facts of the war that slavery, which was 
formerly a question reserved for state action, and for state action 
alone, was brought within the field of federal authority." 



243. Purpose and Classes of Prohibitions on Government. Methods 
— Prohibitions have been placed by the Constitution of l^^^j^ese^' 
the United States upon the different governments of this ends, 
country for three separate purposes: (i) to prevent all 
action by any government on certain subjects; (2) to 
protect the states or individuals from interference by the 
national government; (3) to keep the states from infring- 
ing upon the powers given to the central government and 
demanding concerted action. The first object is obtained 
by prohibiting both to the national and the state govern- 
ments the granting of titles of nobilit}', the passing of bills 
of attainder, and ex post facto laws on criminal subjects or 



2IO 



The American Federal State 



For the sake 
of the central 
government 
and citizens. 

Hinsdale, 
kk 434-445- 



For protec- 
tion of 
individuals. 

Hinsdale, 
kk SS9-S68, 
624-631. 

Cf. hh SS8- 
560. 



laws recognizing slavery. The second is gained by direct 
prohibitions or limitation upon the United States govern- 
ment; the third by prohibitions upon the states in the 
national Constitution. The sphere of activity from which 
all governments are excluded may be further enlarged by 
uniform action among the states. If, for instance, a cer- 
tain subject belongs entirely to the states, and all the state 
constitutions agree in prohibiting legislation on that sub- 
ject, or in permitting legislation only under certain limita- 
tions, that subject is then as much outside the control of 
government as is the granting of titles of nobility. 

244. Prohibitions on the States. — That most of the pro- 
hibitions upon the states alone are for the purpose stated 
above is shown by the fact that in many cases the prohibi- 
tion may be removed with the consent of Congress. States 
may not make treaties or compacts with other states or 
foreign nations, may not have a navy or army in time of 
peace, or lay imposts ordinarily, but they may, theoreti- 
cally, do the last if Congress is willing. The states are 
absolutely forbidden to coin money, emit bills of credit, 
make anything but gold or silver a tender in the payment 
of debts, or pass a law impairing the obligation of con- 
tracts. Neither may they countenance involuntary servi- 
tude, except for the punishment of crime, nor deny the 
franchise to any one because of race, color, or previous 
condition of servitude. Finally, they may not abridge the 
privileges or immunities of citizens of the United States nor 
deprive any person of life, liberty, or property without due 
process of law. 

245. Prohibitions on the United States Government. — 
The most significant prohibitions placed by the Constitu- 
tion upon the national government exclusively are for the 
protection of the individual. Congress is not allowed to 
define treason, for a definition of that all-important word 
is placed in the Constitution itself. General search war- 
rants are forbidden, and the trial of an accused person is 
hedged about by minute provisions, that seek to give him 



General CJiaracter of American Federalism 21 1 

every chance to prove his innocence, and without delay. 
According to the Constitution no one can be " deprived of 
life, liberty, or property without due process of law, nor 
shall private property be taken for public use without just 
compensation." Neither is the privilege of the writ of 
habeas corpus to be suspended except in case of great 
danger. Congress cannot make a law that abridges free- 
dom of speech, the freedom of the press, or the right of 
assembling or of petition. Religious tests are never to be 
required of United States officials, and Congress is not 
permitted to establish a state religion nor interfere with 
religious freedom. 

There are other prohibitions or limitations less closely To guard 
related to individual liberty, but intended rather to guard *^* "^hts of 
the states against discriminating legislation. No export 
duty can be levied by Congress, all duties on imports kk\.^.L 
are to be uniform throughout the United States, and no 429-432. 
commercial preference is to be given one state over another. 
When a direct tax is levied, it must be in proportion to the 
population as given in the last census. The danger of a 
military despotism is, as far as possible, avoided by the 
double provision that appropriations for an army cannot 
be made for a period longer than two years, and that no 
money can be drawn from the treasury except as appro- 
priated by law. 

246. Interdependence of the National and State Govern- They are 
ments. — While the spheres of national and state govern- of the^same 
ments overlap in some particulars, on the whole they deal sovereign, 
with essentially different and mutually exclusive fields of Federalist, 
activity. The state government is supreme within most Nos. XLV, 
of its sphere, the national government is supreme within all 
of its sphere, and yet neither is supreme in the sense that Bryce, 233- 
it is sovereign. Each is an agent carrying out the will of 
the real sovereign — the people of the United States. As 
each does certain things for the sovereign that the other 
cannot do, neither can exist by itself : they are mutually 
dependent. This interdependence is shown in many ways. 



212 



The American Federal State 



Use of the 
state gov- 
ernments for 
national 
puiposes. 



Each acts 
upon indi- 
viduals. 



Nature of 
citizenship 
in the United 
States. 



As just mentioned, the work of the Federal State can be 
accomplished by neither government alone. On account of 
the difference in the task set each, one cannot become sub- 
ordinate to the other, i.e. the national government cannot 
become the agent of the states, nor the states mere admin- 
istrative subdivisions of the nation, with their governments 
under the control of the central government, without 
destroying the Federal State as we know it. 

The national government makes use of the states, or of 
the state governments, in the choice of many of its impor- 
tant officers, especially the senators; and the states may 
prevent the election of these officials, and might, by con- 
certed action, make the organization of the national gov- 
ernment impossible. But the bare fact that even in the 
most critical period of our history this has not been done, 
shows rather an actual dependence of the state upon the 
nation. Election must occur in localities for all the mem- 
bers of Congress, and, under the circumstances, the states 
were the best suited for this purpose as well as for altera- 
tion in the fundamental law of the land — the Constitution. 

The interdependence of the state and the national gov- 
ernments, with the lack of subordination of one to the 
other, is apparent when we consider that each acts upon 
individuals, and does not use the machinery of the other. 
For example, if an individual infringes upon state law, he 
is punished directly by the agents of the state; if he vio- 
lates national law, the national government does not call in 
state aid, but looks after the matter itself. In the same 
way national taxes are collected by national officials, state 
taxes by administrative agents of the state. So the national 
government and the system of state governments is each 
complete in itself for certain purposes, but incomplete 
without the other for the great purpose it subserves — the 
government of the Federal State. 

247. Dual Character of American Citizenship. — Since the 
individual is subject to the state government in certain 
matters, and has certain rights guarded by that govern- 



General Character of American Federalism 213 

ment, while he has different rights and obligations under 
the national government, it is customary to speak of the 
dual character of his citizenship. He is said to be a 
citizen of the United States, and also a citizen of a 
state. 

There has been during our history a great deal of contro- Controversy 
versy over this subject of citizenship. Those who held over'hesub- 

■" . ject before 

that the states were sovereign, and that the Constitution 1868. 

was a compact, claimed of course that citizenship was only -pjgjgjjjan 

of the state, that there could not be such a thing as citizen- Unwritten 

ship of the United States, and that the term "citizen of the ^°'*^*- °^ 

. . . . ^-S. 93-97. 

United States," which occurred in the Constitution, was 

merely a convenient way of speaking of a citizen. The 
other class held that there was a citizenship of the United 
States distinct from citizenship of the state; but for three- 
quarters of a century it never succeeded, judicially or other- 
wise, in clearly defining its position. Before the Civil 
War there can be no doubt that the vast majority of the 
people held the state citizenship to be above that of the 
United States, if, in fact, they admitted that there was such 
a thing as the latter. 

248. Citizenship as defined in Fourteenth Amendment. — The Xiv 
The needs of the reconstruction period led Congress to pro- amendment 

and its inter- 
pose a constitutional amendment, whose purpose was to pretation. 

recognize the freedmen as citizens, and protect them as such _. , , 

° ' '^ Richman, J. 

from the state governments. The amendment stated that B.,mP.s.Q. 

"all persons born or naturalized in the United States, and ^ (^^90), 

104-123. 
subject to the jurisdiction thereof, are citizens of the United 

States and of the states wherein they reside. No state Z^^""^"' 

-' _ totd., 97-109. 

shall make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States; nor 
shall any state deprive any person of life, liberty, or prop- 
erty without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws." 
There was no longer any doubt of the dual character of 
citizenship, and the order shows that United States citizen- 
ship was not less important than state citizenship. But 



214 



The American Federal State 



what were the "privileges and immunities of citizens of 
the United States" which the states were forbidden to 
abridge? Did they include everything specified in the 
Civil Rights Bill of 1866 (§ 208), as the debates in Con- 
gress would lead one to expect, or was the object of the 
amendment merely to place beyond doubt the reality of 
United States citizenship, and not to increase the powers 
of the national government over civil rights? It was a 
momentous question affecting the very nature of federal 
ism and the integrity of the states as such, for if the 
national sphere was to be so greatly enlarged, the balance 
between the nation and the states could hardly be longer 
maintained. The authoritative interpretation of the first 
sections of the amendment was given by the Supreme Court 
in the Slaughter House Cases (1873). The majority of the 
justices held the conservative view that the powers of 
Congress had not been increased. 



The opinion 
of the court. 

Thayer, 
Cases in 
Const' I Law, 



249. Significance of the Decision in the Slaughter House 

CaSBS. — The opinion of the court declares that before 1868 "the 
entire domain of the privileges and immunities of citizens of the states 
[with exceptions mentioned], as above defined, lay within the consti- 
tutional and legislative power of the states and without that of the 
federal government. Was it the purpose of the fourteenth amend- 
ment, by the simple declaration that no state shall make or enforce 
any law which shall abridge the privileges and immunities of citizens 
of the United States, to transfer the security and protection of all the 
civil rights which we have mentioned, from the states to the federal 
government ? " " When, as in the case before us, these consequences 
[of giving the national government full control of civil rights] are so 
serious, so far reaching and pervading, so great a departure from the 
structure and spirit of our institutions ; when the effect is to fetter and 
degrade the state governments by subjecting them to the control of 
Congress, in the exercise of powers heretofore universally conceded to 
them of the most ordinary and fundamental character; when in fact 
it radically changes the whole theory of the relations of the state and 
federal governments to each other and of both these governments to 
the people; the argument has a force that is irresistible, in the absence 
of language which expresses such a purpose too clearly to admit of 
doubt. 



General Character of American Federalism 215 



" We are convinced that no such results were intended by the Con- 
gress which proposed these amendments, nor by the legislatures of the 
states which ratified them." 

The decision of the court based upon this opinion has never been 
overruled. 

Four justices dissented from this opinion, holding that if the amend- 
ment did not alter the relation of the nation to the states, but merely 
declared what the law was, " it was a vain and idle enactment which 
accomplished nothing and most unnecessarily excited Congress and the 
people on its passage. With the privileges and immunities therein 
designated or implied no state could ever have interfered by its laws, 
and no new constitutional provision was required to inhibit such inter- 
ference." 

In this connection the opinion of Professor Burgess {Political Sci- 
ence and Comparative Constitutional Law, I, 225) is worthy of quota- 
tion, " I say that if history has taught anything in political science, it 
is that civil liberty is national in its origin, content and sanction. I 
now go further, and I affirm that if there is but a single lesson to be 
learned from the specific history of the United States, it is this. Sev- 
enty years of debate and four years of civil war turn substantially upon 
this issue, in some part or other; and when the nation triumphed in the 
great appeal to arms, and addressed itself to the work of readjusting 
the forms oflaw to the now undoubted conditions of fact, it gave its 
first attention to the nationalization in constitutional law of the domain 
of civil liberty. There is no doubt that those who framed the thirteenth 
and fourteenth amendments intended to occupy the whole ground 
and thought they had done so. The opposition charged that these 
amendments would nationalize the whole sphere of civil liberty; the 
majority accepted the view; and the legislation of the Congress for their 
elaboration and enforcement proceeded upon that view." 

250, United States Citizenship. — For better or for worse, 
we have then a distinction between a citizen of a state and 
a citizen of the United States. If persons are born in the 
United States and subject to its laws, they are citizens of 
the United States and of the state where they reside. If 
they are naturalized according to the laws of the United 
States, they are likewise citizens. A citizen of one state 
who moves to another state becomes, from that fact, a citi- 
zen of the second state ; and a person who is a citizen of 
the United States, and not living in any state, is a citizen 
of the United States, without being a citizen of a state. So 



Dissenting 
opinions. 



Prof. Bur- 
gess's view of 
the decision. 

Burgess, Pol. 
Science, I, 
224-230. 



Status of 
citizens. 



2l6 



The American Federal State 



Privileges of 
United States 
citizenship. 



Some rights 
of state 
citizenship. 



a citizen of a state is always a citizen of the United States, 
but the reverse is not necessarily true. 

What are the "privileges and immunities of citizens 
of the United States " ? We should expect them to be the 
rights that the citizen has within the sphere belonging to 
the United States government, and such is the case. In 
the same Slaughter House Cases the Supreme Court has 
enumerated some of these: "The right of the citizen of 
this great country, protected by implied guarantees of its 
Constitution, ' to come to the seat of government to assert 
any claim he may have upon that government, to transact 
any business he may have with it, to seek its protection, to 
share its offices, to engage in administering its functions. 
He has the right of free access to its seaports, through 
which all operations of foreign commerce are conducted, to 
the sub-treasuries, land offices, and courts of justice in the 
several states.' . . . 

"Another privilege of a citizen of the United States is 
to demand the care and protection of the federal govern- 
ment over his life, liberty, and property when on the high 
seas or within the jurisdiction of another government. 
. . . The right to peaceably assemble and petition for 
redress of grievances, the privilege of the writ of habeas 
corpus, are rights of the citizen guaranteed by the federal 
Constitution. The right to use the navigable waters of the 
United States, however they may penetrate the territory of 
the several states, all rights secured to our citizens by 
treaties with foreign nations, are dependent upon citizen- 
ship of the United States, and not citizenship of a state. 
... A citizen of the United States can, of his own voli- 
tion, become a citizen of any state of the Union by a bona 
fide residence therein, with the same rights as other citi- 
zens of that state. To these may be added the rights se- 
cured by the thirteenth and fifteenth articles of amendment 
and by the other [part of first] clause of the fourteenth." 

251. State Citizenship. — While no state can create citi- 
zenship by its laws, the larger part of the rights of citizens 



General Character of American Federalism 217 

are left to the supervision of the state governments, just as 
the sphere of state activity is larger than that of the central 
government. It would be difficult to enumerate all of these 
rights, but among the most important are protection by the 
state government in matters over which it has control, right 
to life, liberty, and property, except as restrained for the 
general good, right to make contracts, to sue and be sued, 
to inherit, purchase, lease, hold, and dispose of real or 
personal property, exemption from unjust taxation or un- 
usual fines or penalties. 

The franchise is not a right of citizenship. It is a politi- Voters and 
cal privilege conferred by a state upon such of its mem- "tizens. 
bers as it deems fit to exercise such a privilege. Voters 
and citizens are not the same. There are usually more of 
the latter, but a state may confer the right of suffrage 
upon aliens if it wishes. It may also give the alien the 
rights of state citizenship, though it cannot make him a 
citizen. 

There are two important restrictions placed by the Constitu- 

national Constitution upon the states in their dealings with **°?^! ''^" 
^ ° stnctions 

its citizens, (i) "The citizens of each state shall be en- ofstate 

titled to all privileges and immunities of citizens in the citizenship. 

several states." That does not mean that if a citizen of Cooiey, 

New York becomes an actual resident of Alabama he is "^^ "*' 

195-197, 

entitled, under the laws of the latter, to any privileges 256-259. 
he may have had in New York, but merely that Alabama 
must give him all the rights she confers upon her own citi- 
zens. She may not discriminate against him as she may 
against an alien. (2) No state shall " deprive any person 
of life, liberty, or property without due process of law, nor 
deny to any person within its jurisdiction the equal protec- 
tion of the laws." The last clause is not intended to make 
it impossible for a state to give a man more rights than 
a child, but simply to see that the laws shall be applied 
without injustice to any. 

252. Naturalization As stated above, citizenship is ac- Acquired 

quired by birth or naturalization. The courts at present citizenship. 



2l8 



The American Federal State 



Process of 
naturaliza- 
tion. 

Hinsdale, ^§ 
383-385- 

Brit, and 
Amer. 

Encyclope- 
dia 0/ Law 
(2deci.), VI, 
19-29. 



Disappear- 
ance of a 
tendency to 
worship the 
Constitution. 



The Consti- 
tution as a 
conservative 
force. 



hold that Indians on reservations are not "born in the 
United States " in the sense intended, for they are, in a 
peculiar sense, subject to our jurisdiction. But children 
of aliens, like the Chinese, who cannot become naturalized, 
may be citizens by virtue of birth in this country. Chil- 
dren of American citizens who are born abroad are consid- 
ered citizens, but their children are not unless the parents 
(who were born abroad) reside for a time in this country. 

According to our present naturalization laws, only per- 
sons of the white and black races can be naturalized. For 
this a residence of five years is necessary. First, the per- 
son goes before any court of record and declares his inten- 
tion of becoming a citizen; then, at the end of the five 
years, provided it is two years after making the declara- 
tion, he proves to the court that he has resided in this 
country that length of time, swears to support the Constitu- 
tion, and renounces allegiance to the State of which he was 
formerly a citizen. His wife and children become citizens 
without taking out separate papers. 

253. The Permanence of American Federalism. — Although 
Americans are justly proud of their national political insti- 
tutions and the great document which provides for them, it 
can be truthfully said that there is no longer a real "wor- 
ship of the Constitution." This disappearance of blind 
admiration is not to be regretted, as it enables us to dis- 
criminate between the strong and weak points of our polit- 
ical system, and makes it possible to look the situation 
squarely in the face. Such frankness and honesty of judg- 
ment are necessary, if we are to properly adapt our institu- 
tions to changing conditions, so as to avoid future dangers. 

From what has already been said, it is perfectly evident 
that the United States is a prominent example of progress 
in all lines of development. We saw in the introductory 
chapter that unless the institutions of a country reflect the 
changes which occur within it, the time will come when 
change will be brought about by revolution. Is there not 
danger that our national Constitution, which made the 



of the Con- 
stitution. 



General Character of American Federalism 219 

creation of a Federal State possible, and which has been 
the great supporter of federalism for a century, may seek 
to maintain a form of federalism our country has outgrown? 
Unquestionably, the relative importance of the states and 
the nation is not what it was a hundred years ago, or fifty 
years ago. Nor will it be the same fifty years hence as it 
is to-day. How does our Constitution provide that it may 
not be outgrown ? 

Changes in the Constitution occur in several ways : by Amendment 
actual amendment, by development of the unwritten con- 
stitution, which modifies or supplements the original pro- 
visions, and by different interpretations. With three 
exceptions the changes since 1804 have been by the two 
latter methods, but they are ill adapted to meet great crises. 
The Constitution must, then, be amended by law or by 
force. Fortunately for most cases, but unfortunately for 
others, the legal process of amendment is very difficult. 

Amendments may be proposed by two-thirds of each Dangers in 
house of Congress or by a convention called at the wish of 
two-thirds of the state governments. They are part of the 
Constitution when ratified by legislatures or conventions po^^sllence 
in three-fourths of the states. Now, it is possible for an i, 143-154. 
amendment to be defeated by states that in 1900 had less 
than one-twentieth of the population of the United States, 
and it would not be possible to legally abolish equality in 
the Senate if fifty thousand people objected. To admit 
that overwhelming majorities demanding national reform 
would be balked by such numbers, is absurd. On the other 
hand, amendments might be passed by states whose popu- 
lation was in 1900 but forty-five per cent of that of the 
whole country. The danger that a minority should alter 
the fundamental law is not great, but these very illustra- 
tions show that constitutional amendment at the present 
time does not seem capable of giving the Constitution 
sufficient flexibility. 

254. Conditions affecting Federalism As it is ordinarily 

useless, and often dangerous, to assume the role of prophet, 



the method 
of revision. 



220 



The Atnerican Federal State 



Commercial 
and indus- 
trial condi- 
tions. 



New 

international 

conditions. 



we may simply consider one or two things that may affect 
federalism in the future. Commerce has had much to 
do in consolidating States, and is the most important bond 
between nations. It tends to become more rather than 
less important. Industry, with its great concentration of 
capital in recent years, is aiding commerce in the United 
States to break down state lines. Uniform policies are 
becoming more and more necessary in different common- 
wealths, and the need of uniform policies in 1787 produced 
the federal Union. 

So far in our history our foreign relations have not been 
important, but it is hardly possible that our altered position 
of recent years shall not bring us into close touch with 
powerful members of the family of great nations. To con- 
duct foreign affairs with skill we must sacrifice, to some 
extent, the democratic idea of government by the people 
and the federal idea of division of power. In other words, 
international success may depend on great centralization 
of power in unfettered officials, chosen not because they 
represent the people, but because of unquestioned capacity. 

There are so many things about which the feeling to-day 
is so much more national than it was half a century ago 
that it is unnecessary to enumerate them. If the states 
will voluntarily adopt more uniform laws on such subjects 
as marriage and divorce, holding and taxation of property, 
definition and punishment of crimes, and regulation of 
corporations, national control will be less necessary; but 
radical differences in state law and procedure will be less 
readily overlooked in the future. Only that future can 
decide whether the United States is "an indestructible 
union of indestructible states," as we fondly hope; but 
we can predict, with some degree of confidence, that many 
decades hence the powers of sovereignty exercised by the 
national and the state governments will not be essentially 
different from those exercised by each at the present; 
that is, there seems good reason to believe that in this 
country federalism will be permanent. 



General Character of American Federalism 221 

QUESTIONS AND REFERENCES 
Centralization and Federalism (§§ 232-237) 

a. Centralization in France. Historical : Adams, European History, 
212-224, 337, 355-364; Wilson, The State, §§ 351-397; Lacombe, 
The Growth of a People, 108-167. 

b. Government : Wilson, §§ 398-475 ; Burgess, Political Science, 
11,94-105, 131-132, 288-306, 352-355; Lowell, Governments and 
Parties in Cotitinental Europe, I, 1-65 ; Goodnow, Comparative Ad- 
ministrative Law, I, 83-88, 266-294. 

1. Show how force, voluntary union, and gradual consolidation aided 
in centralization in Great Britain; in France; in the United States. 

2. Compare the political centralization of England and France with 
that of the United States. To what extent are the counties of Eng- 
land and the departments of France free from control by the central 
government ? 

3. Mention two or three subjects besides suffrage in which state 
action has been better than national law would have been, and try 
to show why. 

4. Name instances where the innovations by the states have been a 
disadvantage to the United States. Is complete state autonomy more 
or less desirable than fifty years ago, i.e. is local self-government 
more or less necessary in later than in earlier stages of a country's 
growth ? 

5. If a treaty is part of the "supreme law of the land," should it 
not be administered by national officials or enforced by national courts ? 
If so, cannot the national government infringe upon the rights of the 
states ? Are the rights of aliens properly or entirely under state con- 
trol ? Would a constitutional amendment be necessary to give our 
central government power to enforce every provision of all treaties ? 

The Nation and the States (§§ 238-246) 

a. Make a comparative study of the distribution of powers in coun- 
tries having dual governments, consulting Crane and Moses, Politics, 
253-264 (general) ; Woolsey, Political Science, II, 166-258; Wilson, 
The State, §§489-557, 636-728, 1016-1022; Freeman, Federal Gov- 
ernment in Greece ; Vincent, State and Federal Government in Swit- 
zerland, chap. Ill; Moses, Federal Government in Switzerland, chap. 
Ill ; Beach, " The Australian Constitution," Political Science Quarterly, 
XIV, 663-680; Hart, Federal Government (United States, Switzerland, 
Germany, Canada). 



222 The American Federal State 

1. Compare the distribution of power between the central govern- 
ment and the states in the United States, Canada, and Austraha. 
Where are the "residuary" powers in each case ? 

2. Mention several instances of the use of implied powers by the 
national government. Can Congress constitutionally build a bridge 
across the Delaware River ? Give your reasons in full. 

3. Name all the exclusive powers of Congress you can think of 
which are not denied to the states. 

4. If a new national Constitution were to be framed this year, what 
additional powers, if any, should be granted Congress, in your opinion ? 

5. Should the powers concurrently exercised by the nation and the 
states be increased or decreased in number, and why ? 

6. Prove that the sphere of state activity is larger than it was a hun- 
dred years ago, or show that the statement is untrue. What powers, 
if any, have been transferred from the states to the nation during the 
nineteenth century ? 

7. Study the history of the provision that prohibits the states from 
passing laws impairing the obligation of contracts. Why was it in- 
serted in the Constitution ? how has the clause been interpreted, and 
what influence has it had? 



American Citizenship (§§ 247-254) 

a. Constitutional amendment. England: '^'■A^on, The State, %<)\'j'. 
Burgess, Political Science, I, 138-141. France : Wilson, §§ 399, 410, 
411; Burgess, I, 168-173. Germany: Wilson, § 499; Burgess, I, 
155-167. 

b. United States, National: Wilson, §§ 1262, 1264; Burgess, I, 
142-154; State : Wilson, §§ 1101-1107; Bryce, 302-304; Cleveland, 
Democracy, 111-126; Texts of Constitutions, in A. A. A.; some in 
Statesman's Year Book; "State Constitutions," in Poore's Charters 
and Constitutions, 2 volumes. 

1. Name some of the civil rights now under the control of the states 
that would have been given Congress had the Slaughter House Cases 
been decided the other way. Has the decision in these cases been ac- 
cepted by the country as correct ? why? Will the decision in the 
end aid or injure Federalism? why? 

2. Tell whether the rights of a citizen would be protected in the 
following cases because of state or United States citizenship. Give 
reasons, (a) In inheriting property; (iJ) if injured in China; (t) if 
on trial for forging a note; (^) when attempting to make another 
keep a contract; {e) if condemned to be hanged for stealing some- 
thing to eat; (/) if denied right to testify in a civil suit; {g) if de- 



General Character of American Federalism 223 

frauded by an agent; (Ji) if tried without a jury for treason; (t) if 
denied the privilege of the writ of habeas corpus in time of peace; 
(y) if taxed by a state for importing goods; (^) when seeking to gain 
money due from an employer. 

3. How would the method of amending the Constitution probably 
be different if a new one were to be adopted by a new convention at 
the present time ? Why is the clause referring to amendment the 
most important one of the Constitution ? 

4. Is any country ever governed wholly by the people lisnug at any 
particular time ? Should it be ? If the latter, why is a countrj' bound 
to follow the method of constitutional amendment adopted by a pre- 
vious generation ? Is there greater danger of being too conservative 
or too radical ? 



CHAPTER XI 

THE SENATE 
General References 

Hinsdale, American Government, 160-193. 

Bryce, American Commo7twealth (abd. ed.), 71-93. 

Hamilton, Madison, and Jay, The Federalist, Nos. LXII-LXVI. 

Story, Commentaries, chaps. VIII, X-XIII. 

Wilson, Congressional Govermnent, 193-241. Professor Wilson's es- 
say gives a very striking account of the workings of Congress, 
Written when executive influence was not great. Favors Eng- 
lish system. 

McConachie, Congressional Committees, 259-348. An inside view of 
the way Congress does its business. 

Meigs, Growth of the Constitution, 68-122. Resolutions of conven- 
tion of 1787 on Senate classified. 

Alton, Among the La-iv-makers. Gives, in popular form, accounts of 
particular events which illustrate the methods and processes of 
Congress. 

Dawes, How We Are Governed. 

Lalor's Cyclopedia. Articles by Spofford on " Parliamentary Law," by 
Johnston on " Senate," by Eaton on " Confirmation by the Senate," 
and the articles on " Congress." 

Periodical literature. Consult indexes under Senate and United States 
Senate. 



Reasons for 
its bicameral 
organization. 

Story, Cotn- 
mentaries, 

h\ 555-558. 

562-570. 



255. The Congress — According to the Constitution all 
legislative power granted to the United States government 
is vested in a Congress of two houses. These houses are 
constituted in different ways, and represent, in theory, the 
states and the people respectively. The upper house, or 
Senate, is made up of two representatives from each state, 
chosen by the legislature of that state, while the members 
of the lower house are chosen in districts of nearly equal 
> 224 



The Senate 225 

population. The objects of having the Congress bicameral 
are twofold: the one historical, the other practical. At 
the time the Constitution was framed almost all of the 
states had bicameral legislatures, and the English Parlia- 
ment was made up of two houses. The convention there- 
fore but followed Anglo-Saxon precedents. Yet it would 
hardly have done so but for the decided advantage which 
it was thought the two-chambered legislatures had over a 
unicameral one. With the preference that then obtained 
for checks and balances, the convention would probably 
have favored two houses had they been constituted in the 
same way; but as they were radically different in compo- 
sition, and were thought to represent just as different inter- 
ests, the value of two houses was admitted by practically 
every member. Although there has not been the great 
difference between the Senate and the House that most 
expected, and while they have often blocked necessary 
legislation, there is little doubt that we have had better 
government and more perfect laws because all power was 
not intrusted to one house. 

256. The Bicameral Legislature in History. — It cannot be Ontheconti- 
truthfuUy said that the bicameral system is the most natural one, nent 
in spite of its almost universal use at the present time. Nearly I'^^ropej. 
all of the continental countries had three houses or estates, as in Wilson, The 
France, or four houses, as in Sweden, and the bicameral legislature State, \\ 375, 
has been adopted by them during this century because of its practical 794- 
value. 

When Edward I called his model parliament in 1295, — ^^ ^""^^ °"* In England, 
worthy of the name, — there were four " estates " represented : the 
'nobility, the clergy, the lesser nobility or knights, and the burgesses or it 848-8c;q 
townsmen. As the clergy either abstained entirely from attending or 
threw in their lot with the nobility, and the knights and burgesses 
voted together, these four estates became in less than a century a 
House of Lords and a House of Commons. 

The first colonies were largely under the legislative control of a gov- In America. 
Rtnor and assistants. The people were first allowed a share in the 
government, when they chose representatives who sat with the assist- 
ants, and were consulted on certain matters. Gradually these two 
bodies came to sit apart until, in 1787, Pennsylvania and Georgia were 
Q 



226 



The American Federal State 



Long and 
short ses- 
sions. 



Special ses- 
sions of 
Congress. 



Special ses- 
sions of the 
Senate. 



the only ones that had a single chambered legislature, and each of 
these added another house before 1791. All of the newer states have 
had two houses from the beginning. As the Continental Congresses 
were intended to be diplomatic bodies, they were not separated into 
two parts, and their successor, the Congress of the Confederation, 
though given power to make laws, was made up in the same way. 
The failure of the Congress, as contrasted with the success of the legis- 
latures in the states, did much to strengthen the desire for a national 
legislature of two houses. So after it was decided to make a new con- 
stitution, the convention was all but unanimous. 

257. Sessions of Congress — The life of each Congress is 
the same as the term of a representative, or two years, and 
they are numbered accordingly, as, e.g. the fifty-fifth Con- 
gress began its career with March 4, 1897, and closed it on 
March 4, 1899. It is very unusual for any Congress, how- 
ever, to be in session more than half of that time. It has 
two regular sessions, popularly known as the long session 
and the short one. The long session begins at noon on the 
first Monday of December in the odd years, and continues 
until both houses agree to adjournment, which occurs 
usually in the early part of the summer. The short session 
begins on the first Monday of the following December, and 
continues till the 4th of March. Congress may adjourn 
sooner if the Senate and the House agree; but nowadays 
that is never done, and the last days of the short session 
are usually the busiest ones Congress ever has. On extraor- 
dinary occasions the President calls an extra session by 
issuing a proclamation, naming the date and setting forth 
the reasons for his action. Congress may itself provide 
for such an extra session between the regular ones by ad- 
journing to a fixed date earlier than December. In case 
the houses disagree as to the time of final adjournment, the 
President may step in and set a date. 

The Senate is always convened, usually without th3 
House, immediately after the inauguration of a President, 
for the purpose of acting upon executive appointments. It 
may also be called together in order to attend to treaties 
of importance. 



The Seiiate 



227 



258. Provisions Common to Both Houses ; Privileges and 
Disabilities of Members. — Article I of the Constitution makes the 
following regulations for Congress and congressmen : — 

"Section V. [i.] Each house shall be the judge of the elections, 
returns, and qualifications of its own members ; and a majority of 
each shall constitute a quorum to do business, but a smaller number 
may adjourn from day to day, and may be authorized to compel the 
attendance of absent members in such manner and under such penal- 
ties as each house may provide. 

2. " Each house may determine the rules of its proceedings, pun- 
ish its members for disorderly behavior, and, with the concurrence of 
two-thirds, expel a member. 

3. " Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may, in their 
judgment, require secrecy; and the yeas and nays of the members of 
either house on any question shall, at the desire of one-fifth of those 
present, be entered on the journal. 

4. " Neither house, during the session of Congress, shall, without 
the consent of the other, adjourn for more than three days, nor to any 
other place than that in which the two houses shall be sitting. 

" Section \^. [i.] The senators and representatives shall receive 
a compensation for their services, to be ascertained by law, and paid 
out of the treasury of the United States. They shall, in all cases ex- 
cept treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective houses, and 
in going to and returning from the same; and for any speech or debate 
in either house they shall not be questioned in any other place. 

2. " No senator or representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority of 
the United States, which shall have been created, or the emoluments 
whereof shall have been increased, during such time; and no person 
holding any office under the United States shall be a member of either 
house during his continuance in office." 

259. Compensation of Members The members of Congress 

under the Confederation were paid out of the state treasuries. This 
increased their dependence on the legislatures, and, as they were sub- 
ject to instruction and recall, made them mere delegates of the states. 
The constitutional convention was composed of men who had almost 
without exception served in the old Congress. They appreciated these 
evils, and realized the need of making aU persons connected with the 
new United States government independent of the legislatures. There 
was indeed a movement to have the members of Congress, like those 
of Parliament, serve without pay, but this did not receive sufficient 



Hinsdale, 

hh 312-330. 



Membership 
and quorum. 



Rules and 
control of 
members. 

Journal. 



Adjourn- 
ment of one 
house. 

Compen- 
sation and 
privileges of 
members. 



Disabilities 
of members. 



The subject 
in the con- 
vention. 

Meigs, 
Gro~a)tk of 
Const., 96- 
100. 



228 



The American Federal State 



Pay of public 
officials in 
democracies. 



Pay of con- 
gressmen 
(1789-1901). 

Hinsdale, 
§327- 



support. Accordingly, the congressmen, judges, and civil officers were 
to be paid from the national Treasury, and Congress, under certain 
limitations, was to decide as to the amount. 

All democratic communities have opposed small salaries for any 
official or subordinate, and have always refused large salaries without 
regard to the value of the service. While it may not be correct to say 
that in the United States minor officials are overpaid, it cannot be 
denied that the salaries for positions of prominence have been absurdly 
low. This attempt to equalize salaries may be very democratic, but is 
ruinous to good government ; for a person may be tempted to take a 
public position either for the honor and the power it gives or for the 
compensation. When the pay is but a small fraction of what a man of 
the same intelligence would receive in other lines of work, and the 
power wielded is very limited, men of mediocre talent only will give their 
time for the public. If this continues for some time, whatever honor 
may have attached to the position at the first gradually disappears. So 
democracy, to satisfy an ideal, is very often content with poor servants. 

The pay of congressmen at the present time is ;^5000 a year, with 
extra allowance for travelling expenses, called "mileage," and, in the 
Senate, for clerks. In 1789 it was ^6 a day, and later $8. The salary 
was placed at ^5000 in 1865. One difficulty in increasing the pay has 
arisen from the unwillingness of a congress to vote their successors a 
large salary, and yet deny themselves the extra amount, and from the op- 
position of the people to a congressman's increasing his own salary. It 
so happens that if a congress votes to increase the pay, according to law 
and custom they receive the new salary, and not the old one, for both 
of their sessions, no matter when the vote to increase the amount was 
taken. On the last day of the forty-second Congress a bill was passed 
substituting ^7500 for ^5000. This was a gift of ^5000 to each con- 
gressman, under the guise of pay for the two previous years. So great 
was the popular disapproval of the " grab act " that almost all of the 
representatives that voted for the increase lost their seats at the next 
election, and the forty-third Congress repealed the act at once. No 
action has since been taken. 



Introduction 
of bills. 

Spofford, 
A. R., in 
Lalor, III, 
71-94, asp. 
75, 76- 



260. Method of Legislation. — Congress exercises its 
powers by passing through both houses (a majority of each 
being present) bills or joint resolutions, which, when 
signed by the President, become laws. The usual form 
of a bill is : " Be it enacted by the Senate and House of 
Representatives of the United States of America in Con- 
gress assembled." A bill may be first passed by one house 



The Senate 



229 



and then considered in the other, or it may be introduced 
simultaneously in both houses. If it is introduced by an 
individual who is not, in doing this, representing a com- 
mittee, it is read by title, and usually referred to the appro- 
priate committee, who report upon it later or not as they 
see fit. It is usually "killed in committee." When a bill 
is reported by a committee, it has to be read in all three 
times; and if there is any debate upon it, this debate and 
the proposal of amendments takes place between the second 
and third readings or after the third reading. 

The vote upon a bill, or upon a motion, order, or reso- Methods of 
lution, may be taken in one of three ways: (i) by calling '^°""S- 
for the ayes and noes, the presiding officer deciding by the 
sound; (2) by a "division" or rising vote, when the mem- 
bers are counted; and (3) by calling the roll of the mem- 
bers of the House at the request of one-fifth of the members, 
and entering the vote on the record. 

When a bill has been passed by one house, it is signed by The bill after 

the presiding officer and sent to the other, where it goes Passage by 

. ° one house, 

through the same process, unless it has already done so. 

It is then sent to the President. If he signs it, or fails to 
sign it, within ten days, provided Congress has not mean- 
while adjourned, the bill becomes a law. If the President 
disapproves the bill, he returns it, with his objections, to 
the house in which it originated. 



orders, and 
resolutions. 



Professor Hinsdale gives (p. 338, American Government) these Distinction 
differences between bills, orders, and resolutions. He says: "A bill between bills, 
is a form or draft of law presented to a legislative body, but not yet 
enacted into law. . . . Mr. Jefferson thus distinguishes between an 
order and a resolution. ' When the house commands, it is by an order. 
But facts, principles, and their own opinions and purposes are expressed 
in the form of resolutions.' Joint resolutions have the resolving clause, 
' Resolved by the Senate and the House of Representatives.' Joint 
resolutions are not distinguishable from bills, and are subject to the 
same rules. Other forms of resolutions are resolutions by the separate 
houses and concurrent resolutions. Were it not for this clause [Art. 
I, § 7, cl. 3], Congress might defeat the operation of the preceding 
one by calling its acts motions, votes, or resolutions, instead of bills," 



230 



The American Federal State 



Three kinds. 

Lodge, Hist, 
and Pol. 
Essays, 169- 
179. 



Filibustering. 

Bryce, loi- 
103. 



Opposition 
within the 
majority 
party. 



Disagree- 
mentbetween 
the houses. 

Bryce, 140- 
142. 



261. Difficulties in passing Laws The usual difficulties 

in passing bills are of three kinds: (i) they may occur 
in either house when the bill is first under consideration; 
(2) they frequently arise if the houses desire different 
features for any bill; (3) they are caused by executive 
veto. 

In the first instance the opposition to a measure may 
come either from the minority or the majority. The party 
out of power seeks to hinder legislation or prevent it alto- 
gether. This "filibustering" may take the form of calling 
for the roll of members on unimportant amendments, 
making lengthy speeches (in the Senate, which has never 
adopted the "previous question"), and of remaining away 
from the House so that a quorum is lacking. So effectively 
did the last method succeed in blocking legislation in the 
first weeks of the fifty-first Congress, that Speaker Reed 
insisted upon counting as present Democratic members 
who were in attendance, but did not vote. This rule is 
now used by every House of Representatives. Thus the 
lower house, which also employs the "previous question" 
in order to stop discussion and bring a measure to a vote, 
has excellent control of debate. 

A bill may meet with the approval of but a portion of 
the majority, and, if a party measure, its success depends 
upon the ability of its framers to win over their associates. 
This may be done by what is known as "log rolling," the 
principle of ' you help me with my bill and I will help you 
with yours, ' or by calling a caucus, if the bill is very im- 
portant, and obtaining an indorsement of the bill. This 
enables the leaders to whip the refractory members into 
line much more easily than would be possible without the 
caucus; for members dislike to vote against their party 
under such circumstances. 

262. Conference Committees — Another difficulty, which 
is often quite serious, may arise from a disagreement 
between the two houses. A favorite measure of one may 
be defeated by the other, or not even treated with consid- 



The Senate 



231 



eration, session after session. Amendments may be added 
to a House bill by the Senate, or the reverse, which alter 
its character or are objectionable for other reasons. When 
the measure is of sufficient importance to justify it, a con- 
ference committee is appointed, made up of an equal 
number from each house, who, if possible, agree upon a 
compromise and seek to persuade their own chamber to 
adopt the new bill. In the majority of cases this method 
is successful, but on many important subjects even this has 
failed to break the "deadlock." 

263. Congress and the Veto. — In order to pass a bill 
over the President's veto it is necessary to secure a two- 
thirds vote of the members present, the vote being taken 
by calling the roll and recording the ayes and nays. As a 
two-thirds vote is not always easy to get, and as the reasons 
given by the executive have weight with at least a few of 
the members, it is unusual for either house to repass a 
vetoed bill, and more unusual for both houses to do so. 

Those bills that are sent to the President during the last 
ten days of Congress are subject to an absolute negative, 
commonly known as the " pocket " veto. As they cannot 
be returned within the ten days allowed, the Constitution 
provides that they do not become laws unless actually 
signed by the President. He can thus prohibit legislation 
by simply ignoring it. This is a greater evil than it would 
be but for the procrastinating spirit of Congress, which 
often leaves one-quarter of the bills of a session to be 
hurried through during these last ten days. 

264. Composition of the Senate. — The most permanent 
part of the Constitution is that which says that no state 
shall be deprived of equal representation in the Senate 
without its own consent. Each state has two members 
chosen by its legislature for a term of six years. One- 
third of the senators retire every two years, so that at least 
two-thirds are always old members, accustomed to the 
work of the Senate and familiar with the routine of busi- 
ness. As a matter of fact, reelection occurs so frequently, 



McConachie, 
Cong, Com- 
mittees, 245- 
253- 



Disagree- 
ment 
between 
Congress 
and the 
President. 

Hinsdale, 
\\ 335-339. 

Bryce, 163- 
165. 



Its perma- 
nence and 
stability. 



232 



The Americati Federal State 



especially in older states, that the proportion of new men 
is usually less than one-quarter. This makes the Senate 
seem like a permanent body, and yet all the time new life 
and vigor is being infused into it. There is an element of 
dignity and stability of the highest value in developing and 
maintaining a continuous legislative policy, not unmindful 
of public opinion, but little swayed by temporary influences. 
These characteristics of the Senate especially adapt it to 
the duties granted to it alone. 



The British 
House of 
Lords. 

Wilson, 
The State, 
§§ 911-915- 



The French 
Senate. 

Wilson, 
§§ 406-409. 



265. The Upper House in Other Countries. —The second cham- 
ber of the national legislature in Great Britain, France, and Germany 
vary greatly in numbers, election, and power from each other, and' 
from the Senate of the United States. 

The British House of Lords is made up of a number of different 
elements. There are sixteen Scottish peers elected for a single Parlia- 
ment by all the peers of Scotland. Ireland sends twenty-eight peers, 
who are chosen for life. England and Wales are represented by cer- 
tain archbishops and bishops and by about five hundred hereditary 
peers. English peerages can be created at any time by the ministry. 
The part taken by the Lords in ordinary business may be judged from 
the necessary quorum of six members. As a matter of fact, about fif- 
teen or twenty persons give their entire attention to the work of legis- 
lation and control the affairs of the house. Since the Reform Bill of 
1832 abolished the " rotten boroughs," which were owned by the peers, 
the lower house has gradually usurped the place of the Lords, until now 
the upper chamber would not dare to continuously oppose a measure 
passed by the Commons and desired by the English people. 

In France the Senate numbers three hundred members, chosen in 
the departments for a term of nine years, one-third retiring every three 
years. Election is from departments and is indirect, and the elec- 
toral body is peculiar in that it is composed of the members to 
the lower house — Chamber of Deputies — from that department, 
and of what would correspond to our state legislatures and county 
boards of supervisors. The number, term, and mode of election 
of senators can be altered at any time by the passage of an ordi- 
nary law. In legislation the Senate is much less important than 
the Chamber of Deputies, although it has legally as great power as the 
latter. It is seldom consulted by the ministers in outlining their pol- 
icy, and when it has refused to follow the lead of the deputies in mat- 
ters of moment, has always been brought to terms by its stronger 
brother. 



The Se?iaie 



233 



The German Bundesraih is as unlike the corresponding houses in The German 
England, France, and the United States as it can be. It is the small- Bundesrath. 
est body of the four, as it consists of but thirty-eight persons. It is Wilson 
also the most powerful. The members are in reality delegates of a §§ 500-515. 
diplomatic character, subject to instruction and recall, but represent- 
ing the princes of the different states in whom, according to the German 
theory, sovereignty resides. The states are not equally represented; 
but Prussia, which has over half the population of the empire, has sev- 
enteen members to six for the next largest kingdom, and one each for 
the seventeen smallest. The Bundesrath has very complete legislative 
and other duties, and is, in many ways, the government. 



266. Qualifications of Senators. — There are certain 
tninimum requirements prescribed for senators by the Con- 
stitution. They must be at least thirt}^ years of age, have 
been citizens of the United States for nine years, and 
inhabitants of the states for which they are chosen at the 
time of the election. The unwritten law has not added 
to these qualifications, but by custom senators are usually 
drawn from certain classes. Promotion of representatives 
who have shown exceptional skill in the House is less com- 
mon than formerly, but these congressmen still furnish a 
large part of the new senatorial timber. State party lead- 
ers, many of whom have never held other public offices, are 
often chosen; and the third class is made up of prominent 
business men who have made their mark outside of politics. 

267. Senatorial Elections. — The place of holding elec- 
tions is entirely under the control of the state legislature, 
but the time and manner of election may be prescribed by 
Congress. Before 1866 ever)'thing was left to each state, 
and not only great differences existed, but confusion and 
disorder were often the result. On July 26 of that year 
Congress passed an act, which is still in force, regulating 
details of senatorial elections. On the second Tuesday 
after the state legislature met and organized, each mem- 
ber of each House was to name a person for senator by 
a viva voce vote. The next day the tn'O Houses were to 
meet in joint assembly, a majority of each House being 
present, and vote in the same way. If no one had a 



Legal and 

actual re- 
quirements. 

Story, Com- 
mentaries, 
kh 728-732. 



Method of 
election. 

Brjxe, 73-74. 



234 



The American Federal State 



Vacancies. 



Caucuses. 



Popular 
election 
through con- 
stitutional 
amendment. 

Mitchell, 
in Forum, 
XXI (1896), 
385-396- 

Haynes, J, 
in J.H.U.S., 

XI, 547-560. 



Popular 
choice by 
extra-con- 
stitutional 



majority of the votes, this was to be repeated each day 
till a senator was elected. 

In case a vacancy occurs bet\veen sessions of the legisla- 
ture, the governor may appoint some one until the next 
legislature shall choose a senator in the way just described. 
But the Senate has never fully admitted the right of a gov- 
ernor to appoint a senator when the legislature has had a 
chance and yet fails to choose one; and its recent decisions 
have all been adverse. 

While there is no law on the subject, and custom varies 
greatly, the members of any state legislature belonging to 
the party in control usually hold a caucus for the purpose 
of selecting a candidate. If the action of the caucus is 
binding, it gives a great power to a majority of a majority 
in cases where a candidate has nearly enough votes, but 
not quite a majority of the whole. 

268. Proposed Changes in Election of Senators. — Of late 
years there has been considerable discussion concerning 
the Senate and the election of senators. It is felt that 
instead of becoming more representative of the people, 
senators are growing less so. It is urged that so long as 
choice is left to the legislature, corruption and bribery will 
be common and the wishes of the people ignored. Con- 
stitutional amendments transferring the election to popular 
vote have been proposed, and have been indorsed by two- 
thirds of the House of Representatives more than once; 
but the Senate seems satisfied with the present method, and 
they have never been passed by that body. 

In a great many states the effort has been made to evade 
the constitutional requirements by nominating party candi- 
dates for senator before the fall election of the legislature, 
so that the result was, in a measure, an expression of popu- 
lar opinion on the contestants. The famous Lincoln- 
Douglas campaign of 1858 is a notable example. Nebraska 
went farther, and in her constitution of 1875 made it pos- 
sible for voters to indicate their preferences for senators. 
There has been some tendency to adopt the Nebraska plan, 



The Senate 235 

but it will take more pressure than can probably be brought 
to bear to make the legislatures respect the wishes of the 
people expressed in this way. 

269. Officers. — The presiding officer of the Senate is TheVice- 
the Vice-president of the United States, who has no vote ^^^^^ ^°*' 
unless the Senate is equally divided. His power is in Storj', Com- 
sharp contrast with that of the speaker of the House, as he j x 1450- 1452. 
appoints no committees and has no direct influence over 
legislation. His qualifications are the same as those of the 
President, for he must be prepared to take the latter' s 

place: but the duties connected with the office are so few, 
and his position of so little importance, that it is difficult 
to secure men of prominence for the place. The danger 
from men of little capacity becomes real, of course, only 
in case of the death of the President. 

The Senate always chooses one of its own members, Other 
known as the president pro tempore, who presides in the °^^^^ °^ 
absence of the Vice-president, and who, if the latter be 
removed by death, becomes a regular president of the Sen- 
ate. He does not, however, become Vice-president of the 
United States. Formerly he might even become Presi- 
dent, if both the presidency and the vice-presidency were 
vacant; but by law of Congress (1886) the succession now 
belongs to the Cabinet (§ 335). 

The Senate has a secretar)' with a score of assistants, a sergeant-at- 
arms who maintains order, a postmaster, a doorkeeper, and a chaplain. 
Each committee has one or more clerks, and each senator has a private 
secretary who is paid out of the public treasur}-. 

270. The Committees of the Senate. — The Senate trans- Composition. 
acts most of its business through the committees. There McConachie, 
are forty-nine standing committees and a number called Cw^. Com- 
special, with memberships varying from five to fifteen 
These committees were at first chosen by ballot in the Sen- 321-326 
ate, but the method proved unsatisfactory, and since 1845 
they have been selected in this way: the political party 
that is to control the organization of the new Senate holds 
a caucus, and agrees to a list of committees in which all of 



mi/fees, 266- 
272, 289-294, 



2S6 



The American Federal State 



Important 
committees. 

See also Mc- 

Conacliie, 

339-343- 



Conserva- 
tism in 
organization. 

McConachie, 
343 345- 

Cf. Bryce, 
83-93- 

Cf. Wilson, 
Cong. Gov't, 
IV. 



the important chairmanships belong to them. They retain 
a majority on the most important committees, but not all; 
and they may assign to their opponents or to third parties 
a few minor places as chairmen. When possible, they 
secure the consent of the rival party to the list before it is 
proposed in the Senate; and, if they cannot, the appoint- 
ment of the committees is delayed till the opposition is 
satisfied with its share. In the meantime the old com- 
mittees are continued until the new ones are selected. 

The most important committees deal with the special 
duties of the Senate. That upon Foreign Affairs may be 
placed first because of its connection with the executive in 
all our international relations. The Commerce, Finance, 
Appropriations, and Judiciary committees all occupy high 
places, and are controlled by the leaders of the dominant 
party. 

271. Senate Regulations. — The semi-permanent char- 
acter of the Senate is observable in everything it does. 
The rules are not changed with each Congress, as is the 
case in the House. Leadership belongs to the older 
members, who have claims to the first positions on com- 
mittees because of length of service in the Senate. When 
a list of committeemen is made up, all the members of the 
party in control are placed above their opponents. The 
one who has been on the committee longest is chairman, 
and the new member comes last of his party and just before 
the leader of the opposition. The members of the party 
out of power are arranged in the same way. Then if the 
chairman resigns for any reason, the senator in second 
place becomes chairman, so that the states which change 
their senators least have a number of important chairmen 
out of all proportion to their representation in the upper 
house, and still more disproportionate to their population. 
But the method makes possible a continuity of policy, 
which is of the highest value in legislation and adminis- 
tration, and which is one of the principal sources of the 
Senate's power. 



The Senate 



237 



Another evidence of conservatism is in the lack of stric- 
tures on debate. Most parliamentary bodies have some 
means of setting a limit on discussion. This is usually in 
the form of the cldture, or previous question, by which the 
body can prevent unnecessary talk and obtain a vote on the 
pending bill. The Senate relies on its natural dignity to 
keep the debate within reasonable bounds. But this reli- 
ance is often misplaced, as the minority frequently post- 
pone measures for no other reason than to obstruct business. 
This "filibustering," as it is called, has proved a serious 
evil in the Senate, and may, in time, make the adoption 
of the previous question a necessity. 

272. Power in Appointment. — During the fifty years 
that followed the Declaration of Independence the upper 
houses of the state legislatures had quite as much power 
as the governors in appointment. This distrust of the 
executive was apparent in the constitutional convention of 
1787. A great many wished to leave the selection of all 
officials, including the President, to the Senate. As a 
compromise, the power of appointment was given to the 
executive department with ratification by the Senate, unless 
Congress agreed that it was not necessary for minor offices. 

The value of this check upon the President has been seri- 
ously questioned. Certain it is that the Senate has greatly 
augmented its own influence by judicious use of the veto 
upon appointments. The President is now allowed to 
select his own advisers without fear of interference from 
the Senate; but in the great majority of cases he must con- 
sult with the senator from the state for which the person is 
chosen, and must follow his advice if he does not wish to 
have the appointment "held up." The executive is a little 
more independent than it was after the impeachment of 
Johnson and before the quarrel between Garfield and 
Conkling (1881), but it is still far from free. 

273. Treaties. — The Constitution requires the approval 
of two-thirds of the Senate for the ratification of all treaties. 
In the convention the power to make treaties was at first 



Conserva- 
tism in 
procedure. 



Distrust of 
the execu- 
tive (1787). 



" Senatorial 
courtesy." 

Bryce, 44-46, 
80-84. 

Eaton, D. B., 
in Lalor, I, 
580-582. 



The Senate 
and treaties. 

Bryce, 78-80. 



238 



The American Federal State 



Schuyler, 
Amer. Diplo- 
macy, 20-24. 



Real power 
in treaty- 
making. 



Purpose of 
impeach- 
ment. 

Bryce, 34-35. 



given solely to the Senate, and only after considerable 
debate did they consent to leave it to the President, with 
two-thirds of the senators present. On account of the 
difficulty in getting a two-thirds majority, the President 
finds it necessary to consult the Senate concerning any treaty 
being negotiated. To take all of the members into his 
confidence would be to sacrifice our foreign interests, as 
diplomacy is a subject for which a popular assembly has 
every possible disqualification. He, accordingly, feels the 
pulse of the Senate through the Committee on Foreign 
Relations, composed of men thoroughly familiar with the 
feelings of their associates and with the foreign policy of 
the past. In this way provisions that are sure to be re- 
jected are not even considered by the executive, and the 
treaty is much more likely to be accepted. 

The Senate is very far from being the tool of the execu- 
tive in our relation with other nations. It reserves to 
itself, and uses the right of amending or rejecting any 
article of a treaty, or even of inserting a new one. Such 
an altered treaty must be accepted by the President and 
the representative of the foreign power before it becomes 
law. If the Senate rejects the treaty entirely, of course 
negotiations are broken off. 

274. Method of Impeachment. — In English history the 
representatives of the people were able to control the agents 
of the King solely through the power of impeachment. 
Like other English customs, that of impeachment was 
adopted in a modified form by the colonial assemblies be- 
cause they needed a check upon the executive and the 
judiciary. When arrangements were made for the impeach- 
ment of officers of the United States in our national Con- 
stitution, it was fondly hoped that this would assure the best 
service because of the constant surveillance of Congress. 
When we realize that but seven persons have been impeached 
since 1789, with only two convictions, it is impossible to 
believe that the wishes of the " Fathers " have been fulfilled. 

Impeachment is made by the House of Representatives, 



The Setiate 



239 



and can be for " treason, bribery, or other high crimes and 
misdemeanors." The House states the charges, and tlie 
person accused is tried before the Senate sitting as a court. 
Evidence is taken and the trial conducted as in any crimi- 
nal court of justice. The vote upon the charges is taken 
by calling the ayes and nays, and a two-thirds majority is 
necessary for conviction. If the person is declared guilt}', 
he is removed from office, and may be disqualified from 
holding any other office under the United States. He may 
then be tried in an ordinary court for any crime defined in 
the law. 

All persons connected with the United States govern- 
ment, except members of Congress, may be impeached. 
When a President is tried, the chief justice of the Supreme 
Court presides over the Senate, as the Vice-president could 
not be indifferent to a verdict that might raise him to the 
highest office in the land. 



Process of 

irnpeach- 
ment. 

Hinsdale, 
§i^ 302-311. 



Who may be 
impeached. 



The two persons convicted were both district judges of the United 
States. Pickering, judge for New Hampshire (1804), charged with 
drunkenness and profanit}', and Humphreys, judge for Tennessee 
(1862), for disloyalt}'. Four others have been tried for impeachment: 
Chase, justice of the Supreme Court (1805), Peck, district judge for 
Missouri (1830), Johnson, President of the United States (1867), and 
Belknap, Secretary' of War (1876), all of whom were acquitted. In 
1897 Senator Blount of Tennessee was impeached by the House, but 
the Senate decided by a vote of fifteen to eleven that congressmen 
were not " civil officers of the United States." 



Officials 
convicted. 



275. Other Special Powers. — The Senate is called upon Election 
to elect a Vice-president whenever the electors fail to do of a\ice- 

president. 

SO. The choice is limited to the two persons receiving the 
greatest number of electoral votes. At least two-thirds of 
the senators must be present, and the person selected must 
have a majorit}' of all the senators, whether present or not. 
Only once in our history (1837) has it been necessary for 
the Senate to ballot for Vice-president. 

Except in relation to just one subject, the Senate has the Financial 
same powers of legislation as the House. "All bills for powers. 



240 



TJie American Federal State 



Cf. \k Zg2- 
296. 



Difficulties 
in keeping 
two legisla- 
tive houses 
coordinate. 

Cf. Ford, 
Amer. 
Politics, 
266-274. 



Senate not 
dominated 
by the 
House. 



Early power 
of the 
Senate. 



raising revenue shall originate in the House of Representa- 
tives, but the Senate may propose or concur with amend- 
ments, as on other bills." As this topic will be treated 
fully in the next chapter, only a suggestion or two need be 
given here. It will be noticed that the provision deals only 
with bills for raising revenue, and not for those expending 
it. Further, while the Senate has no initiative in obtaining 
money, the right to amend revenue bills gives it almost as 
much power as the House in finance. 

276. The Senate and the House. — There is no important 
European state in which the two houses of the legislature 
are of equal importance. For various reasons, the lower 
and more popular branch has usually much greater actual 
influence in shaping the policy of the government. It is 
beyond our purpose at this point to investigate those 
reasons; but, assuming the fact that the European houses 
are unequal, we may ask whether the Senate is dominated 
by the House of Representatives or the reverse, and the 
actual position of each house. 

It is certain that neither house is subordinate to the 
other. The chief cause of this is the separation of the 
executive and legislative departments. In this country 
the President and his advisers are not the agents of Con- 
gress, but of the people directly. If they were the agents 
of Congress, they could not serve both the Senate and the 
House, but must choose one or the other. The one that 
was chosen, or that could make itself the real power in 
making and executing law, would of course control the 
other. This is what has happened in England and France, 
and what has not happened in the United States. 

Still, the ablest of our early statesmen expected that the 
Senate would be rather an aristocratic body, which would 
leave most of the work in legislation to the House. But 
from the first the Senate refused to take a subordinate 
place. Although it was less representative of the people, 
it did represent the states, and in time it became more 
popular in character. It claimed a share in framing 



The Senate 241 

even the financial policy, and asserted its rights on other 
points. 

To-day the Senate is, in many ways, more powerful than Advantages 
the House. This is especially due to three things : first, °[,f^7hT 
the more permanent character of the Senate; second, its House, 
better organization; and third, the patronage it possesses 
through the right to confirm appointments. Those who 
have noticed the work in Congress for several years cannot 
fail to be impressed with the way in which the Senate has 
gained its end, although the House seemed to have every 
advantage. The senators have been more united. They 
have ignored or obstructed House measures time after 
time, while Senate bills have been forced through the 
House. In conference committees they have yielded less 
and obtained more than the representatives. Unfortu- 
nately, the advantages of this state of affairs have not 
always been apparent, largely because the control of the 
Senate has not belonged to any one party, but to irregulars, 
who have held the balance of power. 



QUESTIONS AND REFERENCES 

Both Houses r§§ 255-263) 

a. On the veto power in theory and in practice, look up Johnston, 
in Lalor, III, 1064-1067; Harrison, Thu Country of Ours, 126- 
134; Mason, The Veto Power, especially chap. III. 

1. Is it any longer necessary or desirable that the Senate should 
represent the states? Give your reasons. 

2. What are the disadvantages of having so long a time elapse be- 
tween the election of a Congress and its first regular session? Should 
the time of the election or the meeting be changed ? If so, why, and 
in what way? 

3. Trace the history of the privileges of members of Congress in 
English and colonial history. Are the members of your state legis- 
lature exempt in the same way? 

4. Should the pay of congressmen be increased? Would it result 
in our obtaining better men ? 

R 



242 The American Federal State 

5. Should legislation be made less difficult? Would it be best to 
abolish the pocket veto? Are advantages likely to be derived from 
giving one house sole power over certain classes of bills, and the other 
house exclusive control of others, leaving to the second house in each 
case the right to veto a bill, but no power to amend it ? 

In the following and in similar sets of questions the Congressional 
Directory (Cong. Dir.) and political almanacs (Pol. Als.), published by 
different newspapers, and consecutive records of recent events, such as 
Current History, will be found almost indispensable. The indexes 
should be used as much as possible. 

i. What was the longest single session of Congress? What was the 
length of the last "long" session? When was the last extra session 
held? How many have been called in our history? (Some Pol. Als. 
under "Congress, Sessions of" ; Manuals of the Houses.) 

ii. Select some bill recently enacted. In which house was it in- 
troduced, and on what date? To what committee was it assigned? 
When was it brought up for discussion, and how long did this con- 
tinue? What was the final vote? (Consider same points in the other 
house.) (Current topics in Current History or some other magazine.) 

iii. On what important bills were there conferences at the last ses- 
sion? Choose some one measure. Learn, if possible, who were mem- 
bers of the conference committee, and notice whether they were 
prominent congressmen and especially interested in the bill. Was the 
Conference Bill more Hke that of the House or of the Senate? What 
was the difference between the original votes and the final ones? 
(Reference same as ii.) 



Membership and Organization of the Senate (§§ 264-271) 

1. Are there any features of composition, organization, or powers 
of the European upper houses that could profitably be used by the 
Senate ? 

2. Is the Senate inferior in dignity and in capacity to those of fifty 
or seventy-five years ago? Would its personnel be improved by a 
change in the mode of election? Give your reasons in full. Are there 
any other advantages or disadvantages of such a change? Do you 
favor keeping the present method of election? 

3. Would it be better to abolish the Vice-presidency, to enlarge its 
powers, or keep it as it is? Have the objections of our history come 
from the faults inherent in the office or the character of the men 
selected? 



TJu Senate 243 

L How many senators were there April 30, 1789? Are you sure? 
What is the nomber now? Are there any vacancies at present? To 
what are they due? How are the political parties represented in the 
present Senate? (Cong. Dir.) 

iL Who are your senators? When do their terms close? How 
long have they been in the Senate? What other o&cial positions had 
they held before election to the Senate? To what party or parties 
do they belong? Does either come from your part of the state? In 
which of the classes given in § 266 would you place them? (Cong. 
Dir.) 

iiL What is the number of standing committees in the Senate now? 
of special committees? of joint committees? In which ones are your 
senators? How many chairmen belong to the minority? Notice how 
long the five most prominent chairmen have been senators. Are any 
serving their first term? (Cong. Dir.) 

iv. What Mce-presidents have become Presidents? What ones 
have been elevated to the office by the death of the President? How 
long did they serve altogether as chief executives? (PoL Als.; John- 
ston, Amirican Politics ; Aimr. Fed. State, Appendix C) 



Special Powers (§§ 272-276) 

a. Story, in his Ccmmeniaries, §§ 742-S13, gives a discussion of 
the tribunal for and methods of impeachment; Harrison, Tkis Country 
of Ours, 14&-158, and Johnston, in Lalor, treat of the subject his- 
torically as welL 

1. What are the advantages of having the Senate participate in 
appointments? in the making of treaties? Give the disadvantages 
in each case. 

2. Can you sxiggest a sati^actory substitute for impeachment? Is 
it wise to give a set of persons control over officials through removal? 
Should the official be removed by the person or persons who ap- 
pointed him or not ? Give your reasons. 

3. Is it ever possible now to have a President of one party and a 
Vice-president of another? If so, under what conditions? 

i. Whait officials have been appointed by the President in your 
county? Were any of the appointments made in opposition to the 
wishes of your senator or representative ? Does your state senate 
confirm the appointments of the governor? 

iL Recall four or five treaties in our history that the Senate has 
refused to ratift". Would our icfiuence abroad have been greater with 



244 "I^he American Federal State 

the treaties than without? Was the treaty of peace (i 898-1 899) rati- 
fied by a party vote? Have we any treaties of alliance now? Are 
there any important nations with which we have no commercial 
treaties? 

iii. Name, if possible, bills for raising customs or internal revenue 
over which the Senate has exerted more influence than the House. 

iv. What is the smallest number of senators who at the present 
time can pass an ordinary bill? ratify a treaty? elect a Vice-president? 



CHAPTER XII 

THE HOUSE OF REPRESENTATIVES 
General References 

Hamilton (Madison), The Federalist, Nos. LII-LVI. 

Meigs, Growth of the Constitution, 35-68. 

Bryce, America7t Commonwealth (abd. ed.), 94-154. Shows how the 
House actually works, and criticises methods. 

Story, Comtne^itaries, chap. IX. 

Wilson, Congressional Government, 58-192. Especially full on finan- 
cial procedure. 

McConachie, Congressional Cofumittees, 37-258. Development and 
present powers of committees. Shows advantages of committee 
system. 

Burgess, Political Science and Comparative Constitutional Law, II, 
41-130. Compares legislative departments of United States, 
England, France, and Germany. 

Follett, Speaker of the House of Representatives. An excellent his- 
torical and descriptive study. 

Digest and Manual of the Rules and Practice of the House of Repre- 
sentatives. (Revised for each session.) 

277. Theory of Membership in the House. — The mem- Number in 
bers of the House of Representatives are chosen, every sec- proportion to 

population. 

end year, by those persons in the states who are allowed to 
vote for members of the lower house of the state legisla- '^^^' 94-90- 
ture, the election always being held on the Tuesday after 
the first Monday in November of the even years. The 
number of representatives which any state shall have de- 
pends upon its population, and reappointment occurs every 
ten years after each census; but no state, however few its 
inhabitants may be, is left without one representative. In 

245 



246 



The American Federal State 



Rules for 

determining 

number. 



addition to the members from the states, each territory, 
has a delegate who may speak on any bill affecting his 
territory, though he may not vote. 

It was suggested in the constitutional convention that 
the members of the lower chamber should be in proportion 
to the contributions made by each state for the support 
of the central government; but it met with little favor. 
Instead, the basis of representation in the House (the free 
population and three-fifths of all others, excluding Indians, 
not taxed) was also made the basis for the assessment of 
direct taxes. By the thirteenth amendment the three- 
fifths rule disappeared, as there were no longer slaves; and 
by the second section of the fourteenth amendment not only 
was this fact specifically mentioned, but if a state denied 
to any male inhabitant of that state who was twenty-one 
years of age and a citizen of the United States the right to 
vote, the state should have its membership in the House 
cut down in the same proportion. This does not cover 
exclusion of criminals from the suffrage, nor does it pre- 
vent the states from prescribing an educational test for 
voters. 



Method used 
since 1790. 

Hinsdale, 
\\ 270-273, 
276-288. 

Story, Com- 
mentaries, 
\\ 676-683 
with notes. 



278. Method of Apportionment. — One problem over which 
the House has had many struggles deals with the apportionment of 
representatives to the states. At the first, two methods were suggested : 
(i) that the whole population of the country should be divided by the 
number agreed upon for the ratio; (2) that they should divide the 
population of each state by the number. It is well known that a bill 
embodying the principles of the first method was the subject of the 
first presidential veto in our history. Soon after, the second method 
was adopted, and has been used ever since. Until 1843, however, it 
was customary to pay no attention to fractions, i.e. if the ratio was one 
to forty thousand, and forty thousand went into the population of a 
state six times with a remainder of thirty-seven thousand, the state 
had only six representatives. Since 1843 those states that have had 
a fraction over one-half have usually been given an extra member. 
Reapportionments demand a great deal of mathematical skill and 
practical knowledge to give the best results. 

The following table shows the number of members, and the rate, 
for each census : — 



The House of Representatives 



247 



Ceksus of 


Ratio 


Membership 


(1789) 




65 


1790 


33.000 


105 


iSoo 


33.000 


141 


I8I0 


35,000 


181 


1820 


40,000 


212 


1830 


47,700 


240 


1840 


70,680 


223 


1850 


93.420 


233 


i860 


127,381 


241 


1870 


131.425 


293 


1880 


151,911 


325 


1890 


173.901 


356 


1900 




386 



States admitted between the censuses have always added to the 
membership. 

279. Term and Qualification of Representatives. — Rep- 
resentatives are chosen, on the Tuesday after the first Mon- 
day of November, for a term of two years, beginning the 
fourth of the following March. By special permission of 
Congress three states are allowed to hold their elections 
earlier in the fall. 

Odd as it appears to us, there was scarcely any other 
clause of the Constitution which encountered more vigorous 
opposition in New England than the one making the term 
two years. So accustomed had the people of that section 
become to annual elections, and so much did they fear 
that longer terms meant loss of libert}% that it required very 
^eat persuasive power to overcome the objections. No 
-ne believes now that the term is too long. 

Members of the House must be at least twent\--five years 
of age, have been citizens of the United States for the seven 
years preceding their election, and shall be inhabitants of 
the states from which they were chosen. Custom requires 
that they shall be inhabitants of their congressional dis- 



Date of con- 
gressional 
elections. 



Objection 
to biennial 
elections 
(1788). 



Qualifica- 
tions of 
representa- 
tives. 



248 



The American Federal State 



Story, Com- 
mentaries, 
§§ 617-627, 

The Ameri- 
can idea of 
local repre- 
sentation. 

Cf. Bryce, 
143-146. 



Election 
by general 
ticket. 

Hinsdale, 
hh 295-299- 



tricts as well. This precludes the method often used in 
England and France of selecting some prominent politician 
who may be a resident of any part of the country. The 
American usage is a natural outgrowth of our ancestors' 
idea that there was no representation at all unless each dis- 
trict had one of its inhabitants to represent it. That idea 
was maintained against the English custom of virtual rep- 
resentation in pre-revolutionary times, and still possesses 
great vitality. It would often be possible to secure better 
talent by the English method; and restriction to the resi- 
dents of the district may seriously injure a party in the 
House by excluding some prominent leader whose distrct 
has been altered with the intention and result of causing 
his defeat. The American custom has another disadvan- 
tage in that the representatives are apt to consider them- 
selves the special guardians of their districts, and they 
may, consequently, favor a measure which would benefit 
their district at the expense of the country at large. On 
the other hand, our practice leads to the protection of local 
interests where no national ones are involved, it makes the 
participation of the people in the national government 
more real, and it fixes responsibility by making each repre- 
sentative directly accountable to this constituency. But 
even if the disadvantages were greater, the desire for direct 
representation is so interwoven with the evolution of de- 
mocracy in this country that a change can come only with 
a considerable modification of political conditions. 

280. Congressional Districts. — The states have been 
compelled to elect representatives from districts only since 
1842. Before that year many of them voted, by general 
ticket of the whole state, for the number to which the state 
was entitled. At the present time permission must be 
obtained to elect " representatives-at-large, " as they are 
called. But this is often given when a state, by a new 
apportionment, has one more member than formerly, in 
order that redistricting may be avoided. A state may even 
elect all of its representatives on the general ticket, when 



The House of Rept'esentatives 249 

its representation has been reduced and there has been no 
time to rearrange the districts. 

Congress prescribes that the districts shall be as nearly Gerryman- 
equal in population as possible, and that the territory shall *^^r^°s- 
be compact and contiguous. But it has not been found 
possible to avoid, in practice, the abuse popularly known 
as "gerr}'mandering." This consists in an attempt, on the 
part of a legislature in a state, to divide up the state in such 
a way that the dominant party controls far more than its 
proportion of the districts, being assured fair pluralities in 
each; while the party out of power is left to carry a very 
few districts by very large majorities, if it is fortunate 
enough to elect any of its candidates. 

281. Proportional Representation. — We hear quite a Unfair repre- 
little nowadays about proportional representation, and a ^'^''tation. 
great many plans have been suggested by which minorities Commons, 
shall be represented. It certainly seems unfair, e.g. that sentatimi 

in California the Republicans, with 139,382 votes, should 59-62. 
have six representatives, and the Fusionists, with 128,106, cf. §$ 526- 
should have but one; or, as in Missouri, the Democrats, 527- 
with 286,019 votes, should get twelve out of the fifteen 
congressmen, while the Republicans, with 255,795, have 
only three. 

One of the proposed solutions of these inequalities has The Illinois 
been tried in Illinois for over a quarter of a century in the ^ ^"' 
election of members of the lower house of the legislature. Commons, 
Each senatorial district is given the right to elect three 
assemblymen. Every elector in the district has the right 
to cast three votes, for three different persons, or all for 
one, or any way he may choose. By this method an average 
minority can, by concentrating its vote on one candidate, 
be sure of one representative. 

282. Contested Elections. — The Constitution makes the Method 
House the judge of the elections, returns, and qualifica- ^^^^'". 
tions of its own members. At times these rights have been elections, 
exercised with more zeal than fairness in excluding or Hinsdale 
unseating members of the minority. But, on the whole, \k 312-313. 



250 



The American Federal State 



Spofford, A. 
k., in. Lalor, 

III, 82 -8^ 



Grounds for 
exclusion. 



Vacancies. 



Organization 
at beginning 
of a Con- 
gress. 



Necessity for 
an efficient 
organization. 



the powers have been used in a judicial spirit. In a con- 
test the person who holds the certificate of election from 
the governor of the state is entitled to the seat while the 
case is being tried. The contestant brings forward his evi- 
dence of irregularities, and all documents relating to the 
subject are submitted to a Committee on Elections. On 
report of the committee the House decides who is entitled 
to the seat. 

Persons may be excluded because they fail of the con- 
stitutional requirements. Or they may be prevented from 
taking part in the organization of the House on other 
grounds. This happened frequently during the reconstruc- 
tion period, and more recently in the Roberts'' Case (1900). 
The dangers of abusing a power of this kind, where the 
qualifications of members are not predetermined, have 
been so serious that the House has always hesitated to use 
its power except under very great provocation. 

Whenever a vacancy occurs for any reason, the state 
executive is empowered by the Constitution to call a special 
election for the purpose of filling it. 

283. Organization and Work of the House. — When a 
Congress meets for the first time, the House proceeds as 
soon as possible to adopt a new set of rules, following, of 
course, to a large extent, those formerly in use. The 
House begins at once to organize the machinery by which 
business is done. The two most prominent parts of this 
organization are the speaker and the committees. The 
speaker is the party leader of the majority, and is selected 
by the caucus before Congress meets. He appoints the 
committees at an early date. 

The need of a very complete organization for doing 
business must be evident from the amount of work brought 
before each house. So long as it is expected that the 386 
members come together to make laws, and not merely to 
revise and approve laws submitted to them, they will ac- 
complish nothing unless the machinery is well adapted to 
its task. As discussion by the whole House of the thousands 



The House of Representatives 251 

* 
of bills introduced at each session is impossible, investiga- 
tion must take place in committees, to which particular 
duties are assigned. If a committee does not separate 
the important from the unimportant, its investigation will 
be of no value, because the House cannot then attend 
to all the bills reported to it. After a committee has 
brought up an important measure, as there are a good many 
of these altogether, it is necessary that the bill be given 
prompt consideration, so that it shall not delay something 
else. The House plans to give the speaker power enough 
so that unnecessarj' obstruction shall not occur, and pro- 
vides that debate shall cease, any time the majority wish 
it, by moving the "previous question." One thing more 
is necessar)'. The House must discriminate between the 
bills reported to it, just as the committees must discrimi- 
nate between those referred to them. This may seem com- 
paratively simple, but it is the exact opposite. Over ten 
years ago the House gave up the attempt to settle the matter 
for itself, and gave to the Committee on Rules the right to 
arrange the order of business, subject to the approval of 
the chamber. 

The growth of the business of the House shows why early Congresses Growth of 
could spare more time in debate, and why the present House of Rep- business 
resentatives uses such different methods. In Washington's first admin- ^^^'^^ i79o- 
istration but 196 bills -were passed in two Congresses. As late as the Reed, in ^V. 
thirty-seventh Congress only a little over a thousand bills and resolu- A. /?., 164, 
tions were introduced in the House and Senate. In a single session (^^57) • 041- 
of the fifty-first Congress the house introduced 12,402 bills and joint ^" 
resolutions, the Senate, 4570, a total of 16,972. Of course, most of 
these failed. Out of 14,584 proposed to the fifty-fourth Congress, only 
948 were passed by both houses, though the proportion was unusually 
smaU. 

284. The Committee on Rules. — This committee is Composition 

composed of five leaders of the House, three of whom are ^^^ power. 

from the majority, with the speaker as chairman. In one Foiiett, 

sense the committee is a kind of directive bodv which ^^ rT l^ 

the H. of R., 

selects the subjects that the House shall consider not by 274-280. 



252 



The American Federal State 



McCona- 
chie, Cong. 
Committees, 



Ways in 
which the 
Committee 
on Rules 
may use its 
power. 



preparing and introducing bills, as is done by the English 
cabinet, but by dictating what bills reported by regular 
committees shall receive consideration. As we have seen, 
its power grew out of the need of having a head for the 
House, to do the planning and arranging for it. If this 
task had not been given to the Committee on Rules, it 
would have been assigned to some other body, which might 
have absorbed the power now exercised by the rules, as 
well as those which at present belong to the speaker, which 
will be enumerated presently. 

McConachie, in his instructive book on Congressional Comntitlees, 
shows clearly the process by which the Committee on Rules came to be 
what it is. On its composition and powers he says (pp. 200-205) '• 
"The Committee on Rules consists of five wise and experienced lead- 
ers. They represent in the House a solution of vexed problems similar 
to that which some of our great cities have been adopting; that is, the 
concentration of power in a few hands, so that clear responsibility may 
be fixed, and energetic, able administration secured." 

" The Committee on Rules is in a position to exercise the lion's share 
of the veto power which decides what legislative proposal shall be re- 
jected. Therein lies the chief element of its strength. If it determines 
to pigeon-hole a bill upon the calendar, it needs only to maintain silence, 
or engage or cajole the House with other measures. If a proposition to 
which it is hostile is on the eve of being brought upon the floor by an- 
other committee, it may exercise its superior privilege to claim attention 
for different business. If the filibuster is abroad, and it is in sympathy 
with him, it may, as the only authority which can check his career by 
a special order, simply neglect to exercise its functions." 

" But to observe, on the other hand, the positive side of its power : 
The pettiest claim on the private calendar might find, through its favor, 
precedence over the greatest appropriation bill; with its aid a despised 
Committee on Expenditures could push aside the venerable [Committee 
on] Ways and Means. ' It can prepare a bill in the Speaker's room,' de- 
clares a Representative, * and say to the committee which would ordi- 
narily have charge of the subject : " take this or nothing." ' Among the 
more powerful committees of coordinate privilege, that one prevails which 
gets the alliance of the [Committee on] Rules. While the ability of the 
other committees to effect changes in the [Committee on] Rules is small, 
its opportunities for stripping away their powers and otherwise weak- 
ening them is large, as for example by increasing their size until they 
are unwieldy. If the minority begins old-time filibustering tactics 



The House of Represc7itatives 253 

against a bill, three men of the [Committee on] Rules may at once 
write out a brief resolution which claims the floor even against a con- 
ference report or the reading of the journal, which demands a vote 
without one delaying word or motion, which fixes for the opposed 
measure a time of debate, however brief, and an opportunitj' of amend- 
ment, however limited, before it is put upon its final passage. It is 
not, therefore, a matter of surprise that the House, in the earlier days 
of the Fifty-fourth Congress, passed two important measures, the tariff 
bill and the bond bill, with a rapidity unparalleled, probably, in all its 
previous history." 

285. The Power of the Speaker. — Since the speaker is Three 

the chairman of the Committee on Rules, he is naturally sources of 

•' power. 
the most important member of the most powerful committee 

of the House. But he possesses other powers entirely dis- ^^^' ^°^~ 
tinct from these, which coupled with them give him a 
position almost of dictator. The sources of this power are speaker of 
chiefly three : (i) Reappoints all of the committees and tiieH.ofR. 
selects the chairmen. (2) He assigns to the committees the '^ ^^' 
bills that the House wishes to commit. This gives him a 
chance within certain limits to discriminate between com- 
mittees that are favorable to his policy and those which are 
known to be lukewarm or unfavorable. (3) The speaker 
recognizes whom he pleases. The House does not use the 
custom that the first person to address the speaker shall 
have the floor. There may be a dozen asking for the privi- 
lege of speaking or of making a motion, but only the one 
whom the speaker recognizes has the right to address the 
House. The speaker can in this way favor certain legislation 
and obstruct bills to which he is opposed without the help 
of the Committee on Rules. It is now a rule of the House 
that persons who are present and not voting may be counted 
to make a quorum. Before this rule was adopted it was 
possible for a minority simply by refraining from voting 
to interfere with the conduct of business very effectually. 
Had it not been for the position of the speaker as pre- 
siding officer, and as head of the Committee on Rules, 
it is doubtful whether the majorit}^ could have protected 
itself in this way. 



254 



The American Federal State 



Growth 
necessary 
and will 
continue. 

Hart, Essays 
on Gov't., I. 

Follett, 
Speaker of 
the H. of R. 
chap. III. 



286. Growth of the Speaker's Power. — The speaker was orig- 
inally, like his English prototype, a mere moderator, whose duty was 
to preside impartially over the deliberations of the House. But before 
the first Congress finally adjourned he had been given the right to ap- 
point committees. By degrees he became more and more closely iden- 
tified with his party, and less effort was made to give the minority an 
equal share in the work of even minor committees. The increase of 
business made necessary the exercise of greater power by the speaker 
on the floor of the House. At length it was found advisable, in the 
eighties, to give him and his colleagues on the Committee on Rules 
the right to arrange the order of business beforehand. As the speaker 
dominates this committee, and as the committee controls most of the 
business of the House not in the hands of the speaker, we have an 
illustration of one man power seemingly at variance with our whole 
theory of popular government. This concentration of power shows 
that political bodies need effective organization, even when they are as 
small as the House of Representatives; and that if no suitable organiza- 
tion is provided, one will be developed such as the situation demands. 
The lower branch of Congress is not a permanent body in any sense, 
for usually the majority of its members are serving their first term. 
Consequently, leaders are more necessary, and must be given more 
power than would be the case were the term of representatives longer 
or reelection more common. We cannot expect soon to see this con- 
centration of power cease. It will probably increase, yet there is no 
real danger to good government in these changes, for it is better to 
give a few persons a great deal of power, making them correspondingly 
responsible, than to have that power so distributed among many that 
little is accomplished, and yet we cannot tell whom to blame for what 
goes wrong, or whom to reward for faithful service. So long as the 
speaker's term is short, and he is directly responsible to the House and 
indirectly to the people, we need have little fear that his power will 
prove a menace to liberty. 



Develop- 
ment. 

McCona- 
chie, Cong. 
Committees, 
349-358 
(table). 



287. The Committees. — The first standing committees 
were selected by lot in 1789. In all of the colonies and 
early state legislatures, and in the continental Congress, 
committees had been used for the transaction of business; 
and they were found indispensable in the House. In 1790 
their appointment was given to the speaker. By 18 16, the 
year in which the Senate began using standing committees, 
there were twenty in the House; by 1865 there were forty; 
and in 1900 the standing committees numbered fifty-six. 



The House of Representatives 



255 



The majority in each case belong to the same political party 
as the speaker, so that the minority have nothing to say in 
committee work relative to partisan questions. The com- 
mittees are composed of an odd number of persons, vary- 
ing from five on the Committees on Rules and Mileage to 
seventeen on several others. The favorite number is thir- 
teen. The more important ones have rooms assigned them, 
and hold meetings at certain hours on specified mornings. 
It is in these busy committee meetings that most of the 
real business of the House is transacted. During these 
sessions of the committees they are in conference with 
oflEicials belonging to some department of the administra- 
tion, whose work deals with the same subject as the com- 
mittee. Here the committee listens to persons who are 
interested in the bill under discussion, examines witnesses, 
and makes a complete investigation, accompanied by full 
expression of opinion by the leaders of the committee. 
The meetings are often secret, but frequently open to those 
who have business relations with the committee. 

288. Criticisms of the Committee System. — Our com- 
mittee system of government has called forth unfavorable 
comment from able and fair-minded writers, who have 
devoted a great deal of time to the study of American 
political methods. The most prominent of these is Mr. 
Bryce, who mentions several objections to the committee 
system, as follows : " It destroys the unity of the House as 
a legislative body." "It prevents the capacity of the best 
members from being brought to bear upon any one piece 
of legislation, however important." "It cramps debate." 
"It lessens the cohesion and harmony of legislation." "It 
gives facilities for the exercise of underhand, and even 
corrupt influence." "It reduces responsibility." "It 
lowers the interest of the nation in the proceedings of Con- 
gress," and "the country of course suffers from the want of 
the light and leading on public affairs which debates in 
Congress ought to supply." Each of these criticisms is 
briefly discussed in his American Commonwealth to which 



Composi- 
tion and 
methods. 

Biyce, 115- 
119. 

Spofford, A, 
R., in Lalor, 
III, 78-79. 



Statement of 
criticisms. 

Bryce, 119- 
122, 126-129. 

Wilson, 
Cong. Gov't. 
70-72, 79-85, 
91 et seq. 



256 



The American Federal State 



Why the 
defects are 
not danger- 
ous. 



The routine 
for bills. 

Wilson, 
Cong. Gov't,, 
64-79. 



the Student is referred for further information concerning 
them. 

The justice of the criticisms cannot well be questioned, 
severe as they appear; but the defects are not so serious 
as they might seem, for two reasons, (i) The committee 
system is an absolute necessity for a legislative body which 
does not restrict the right of initiation of its individual 
members, and confer upon some set of persons sole power 
to bring in important bills. The committees have been 
evolved as the best means of reconciling legislative free- 
dom of congressmen with increase of business. If we were 
willing to concentrate most of the powers of initiation in 
one committee, we could undoubtedly make it more re- 
sponsible than any of ours now are; but we should run a 
greater risk of developing class rule, which we have sought 
above all else to avoid, during the nineteenth century at 
least. (2) Most of the faults enumerated above will be 
avoided, if certain changes are made by which some cen- 
tral directive committee is given control over the others 
for the purpose of harmonizing legislation. The most im- 
portant objections to our system are the lack of unity and 
the impossibility of fixing responsibility. Such a com- 
mittee would be able to prevent conflicting and contradic- 
tory legislation without altering greatly present methods 
and processes. It could of course be responsible only to 
the House or to the people through the representatives, as 
it would have no power outside of the House. 

289. The Course of a Bill. — How is this machinery of 
the House used in doing business? In the first place it 
has nothing to do with introducing bills, for every bill is 
presented by some representative acting, it may be, for 
some committee. Members are not allowed to bring in 
bills whenever they please, but are restricted to particular 
days. The bill is taken to the clerk beforehand, and when 
the roll by states is called, at the proper time, the clerk 
reads not the bill, but the title. It is then sent to the 
proper committee, without delay if but one committee asks 



The House of Representatives 257 

for it. When the bill is of such a nature that it might be 
referred to either of two committees, and of such impor- 
tance that both committees want it, delay may be occa- 
sioned by the strife of the chairmen for the bill. Most of 
the measures thus committed are never heard of again, are 
" killed in committee"; but many of them are reported, 
favorably or unfavorably, to the House. They must then 
go through second readings, unless they have already done 
so, and a few, after debate and possibly amendment, are 
brought to a vote. 

290. The Transaction of Business. — The House has its Allotment of 

time well divided up by rule and custom. The first and ^°^^ '° *° 
^ ^ House. 

third Mondays are set aside for the introduction of bills. 
The other Mondays are devoted to bills relating to the j^- a r 16. 
District of Columbia. Friday afternoons are given to pri- (1897), 646. 
vate bills, aside from pensions, which are taken up Friday 
evenings. The other days are devoted to public business. 

The House meets at noon, and after prayer and the read- The order 
ing of the Journal, the speaker recognizes the chairman of o^ ^^i^^ss. 
the committee who, according to the calendar, has the right Reed, in A^ 
to the floor. The latter has selected some bill or bills (igoy) 646- 
whose passage he deems essential to the proper perform- 650. 
ance of his committee's work. He has an hour to present 
the measure, though he does not often take as much time 
as that himself. He may have all of that day and of the 
next, provided he is not interrupted by a report from some 
other committee whose chairman has the right to demand 
immediate consideration for the bill reported. At any rate, 
the first chairman has the claim to parts of two days, and 
before his time is up he usually moves the previous question, 
which stops debate and makes it necessar}- for the House to 
decide whether the original motion shall be put to a vote. 

291. The Committees of the "Whole. — Some of the business Work and 
of the House is done in what are known as the Committees of the regulations. 
Whole. There are two of these : one caring for private bills, and 

the other for public bills relating to finance. The latter is of course 
much the most important, 
s 



258 



The American Federal State 



McCona- 
chie, Cong. 
Committees, 
99 et seq. 



Exclusive 
power of the 
House. 

Hinsdale, 
h\ 331-334- 



Relation of 
revenue and 
appropria- 
tion com- 
mittees. 

Bryce, 131- 
135- 

Wilson, 
Cong. Govt, 
136, 146-163. 



Different 
forms of 
taxes used. 



The regulations for these committees are not the same as the rules 
of the House. The speaker always calls some one else to the chair, as 
he sometimes does in the House proper. But the presiding ofhcer 
cannot make any one attend the committee, neither does he have the 
right to maintain order by force. The quorum, instead of being one- 
half the members, is only one hundred. Speech is not subject to just 
the same limitations as in the House, and consequently more opportu- 
nity is given for discussion. When the committee has finished the 
business in hand it rises and reports to the House, which is in no way 
bound by the action of the committee. 

292. The Raising of Revenue. — Among the special 
powers conferred upon the lower branch of Congress by the 
Constitution is the right to originate all bills for the raising 
of revenue. These bills may be amended by the Senate. 
In practice, measures for the raising or appropriation of 
money originate in the House, and the Senate alters them 
to suit its own plans, so that the House may fail to recog- 
nize the bill sent in by the upper house as the one passed 
some time before. 

The determination of the amount of revenue needed to 
run the government, and the methods by which the money 
shall be raised, is the delicate task assigned the Committee 
on Ways and Means. It is the custom in this country to 
have the -money raised by one committee and spent by a 
dozen others. Such a system does not guarantee that the 
sums received and expended will be the same, nor does it 
assure a surplus in case of a great difference between the 
two amounts. The best that the Committee of Ways and 
Means can do is to raise as much as the government seems 
to need. It cannot tell how extravagant the different 
appropriation committees may be, singly or together, as 
they make no attempt to work in harmony with the Ways 
and Means. If a deficit occurs, money must be borrowed, 
and perhaps the new Ways and Means will devise other ways 
of drawing money from the people's pockets. 

293. The Sources of Revenue. — It will be noticed that 
in national finance the committee for raising revenue must 
wait upon the committees who expend it. A nation is not 



The House of Representatives 259 

like an individual, whose expenditures must depend upon cf. §$ 578- 
his revenue. It has certain governmental duties to per- ■584- 
form, and in performing them it thinks first of carrying on 
its work, and second of raising the money to do it. In 
other words, expenditure determines the income. If the 
expense is unavoidable, and the revenue is not forthcoming, 
the government sooner or later goes to pieces; but in 
modern States the question is not whether the money can 
be obtained, but by what means. In the United States we 
have derived the greatest part of our revenue from duties 
on imports. Under federalist rule, and since 1861, inter- 
nal revenue has been very important. The public lands 
have yielded some, while temporary income and direct 
taxes have been used. Practically every cent brought into 
the treasury has been by indirect taxes, levied almost as 
much in the interest of industrial development as for the 
sake of revenue. 

294. Difficulties encountered by the Committee on Ways Defects in 
and Means. — All of these indirect sources are liable to ^^anciai 

methods. 

great fluctuations, according to the extent of the business 
in the goods upon which the tax is levied. So the Com- sc)encTof' 
mittee on Ways and Means is beset by difficulties, or would Finance, 
be if it considered these objections worthy of that name. ^^9-132. 
(i) It must raise an amount of money for the government 
when it does not know how much is needed. (2) Its well- 
planned calculations may be ruined by some unforeseen 
business change. (3) In the raising of its revenue from 
at least one source, the revenue feature is less important 
than the protection feature. This is true even of the bills 
designed during late years as free trade measures. (4) If 
it attempts a nice adjustment of income to appropriations, 
the changes introduced by the Senate, which even a con- 
ference committee cannot induce them to drop, spoil the 
whole scheme. So the committee does not attempt to 
equalize the two sides of the balance — a problem it can- 
not solve — but is content if it gets bills passed to meet 
general needs. 



26o 



The American Federal State 



Surpluses in 
the United 
States. 



Its distribu- 
tion among 
many com- 
mittees. 

McCona- 
chie, Cong. 
Corn's, i8i- 
i86. 

Wilson, 
Cong. Gov't, 
163-169. 



Fortunately for us, the United States government has always had 
all the money it needed in times of peace, and the Committee on 
Ways and Means has not had so great a burden as might at first be 
thought. In fact, our Congresses have had as much trouble in expend- 
ing the surplus as in raising enough money. It can readily be seen 
that this command of a full purse has given the national government 
the opportunity of using its power to better advantage, and has greatly 
aided in the development of nationality. Had the states been able to 
levy their taxes as indirectly as Congress has done, they might have 
insisted upon a stricter construction of the Constitution. Certainly 
the national sphere of governmental powers would not have been the 
same if we had used the plan of the new Australasian constitution, 
which gives the federal government the exclusive right to levy indi- 
rect taxes upon imports, but compels it to distribute four-fifths of the 
revenue among the states of the federation. 

295. Regulation of Expenditure. — Before 1865 the 
Committee on Ways and Means looked after the appropria- 
tion of funds as well as its present duties. During that 
year a separate appropriation committee was created. For 
a time it had sole charge of appropriations, but the Com- 
mittee on Rivers and Harbors made good its claim to the 
bill granting money for rivers and harbors. Little by little 
the Committee on Appropriations has been deprived of its 
duties, till now it has thirteen associates which take charge 
of the appropriation of funds for particular purposes. 



Process of 
determining 
the amount 
of appropria- 
tions. 

Adams, 
Science of 
Finance, 
123-129. 



It is customary for the Secretary of the Treasury to have the chief 
officials in the Treasury and other departments make up in the fall of 
each year estimates of the amount of money needed for the year begin- 
ning the first of the following July. These estimates are bound to- 
gether, and sent with the Secretary's report to Congress when it meets. 
These estimates are assigned to the proper committees, and are usu- 
ally the bases of the committees' report, but the committees are not 
bound by the estimates of the executive department. When a bill 
making appropriations is reported to the House, that body considers it 
in Committee of the Whole on the state of the Union. In times past 
this consideration has been careful and thorough, but with the multi- 
plication of appropriation bills the House has given less attention to the 
subject. It might be stated that the committees usually recommend a 
much smaller amount than that asked in the estimate. In the Senate 
the appropriation is likely to be increased, and finally, when the con- 



The House of Representatives 



261 



ference committee reports, it is probably the close of the session, and 
the conference bill is passed without much debate on its merits. 

The amount and the sources of our revenue at different periods is 
shown in the following table (last three figures omitted except in 
totals) : — 



Year 


Customs 


Internal 
Revenue 


Public 
Lands 


Miscel- 
laneous 


Total 


1795 


^5,588 


^475 




^28 


^5.954,534 


1820 


15,006 


106 


$ 1,636 


93 


16,840,670 


1850 


39.669 




1,860 


2,064 


43.592,889 


1865 


83,928 


209,464 


997 


26,642 


322,031,158 


1887 


217,287 


118,823 


9.254 


26,034 


371,403,288 


1899 


206,141 


272,487 




37.025 


515,652,666 



The expenditures in the same years have been as follows — 



Year 


Civil and 

MiSCEL. 

Indians 


War 
Dept. 


Navy 
Dept. 


Pensions 


Int. on 
Public 
Debt 


Total 


179s 


$ 1,401 


t 2,481 


$i,\\ 


$(^9 


$ 2,947 


;? 7,309,601 


1820 


2,908 


2,630 


4,388 


3,208 


5,151 


18,285,535 


1850 


17,707 


9,687 


7,905 


1,867 


3,782 


40,948,383 


1865 


48,049 


1,030,690 


122,617 


16,348 


77,395 


1,295.099.289 


1887 


91,459 


38,561 


15,141 


75,029 


47,742 


267,932,180 


1899 


132,619 


228,834 


64,814 


139,387 


39,896 


605,551,323 



Criticisms. 

Bryce, 135- 
137- 



No account is taken of the receipts from the post-office or of expen- 
ditures for the same except for the excess above receipts. 

296. Reform of the Financial Methods. — The financial meth- 
ods used by Congress have been subjected to very severe criticism. 
The entire lack of cooperation between the Revenue and Appropria- 
tions Committees, the inability of the Treasury department to influence 
either chamber except by suggestions, which are seldom heeded, and Wilson, ^ 
the opportunities given at every stage in the preparation of the bud- ttt ' 

get, as it is called, to make changes for which the responsibility can- 
not be fixed, have been attacked unmercifully. Many writers have 
made a comparison between the British and the American systems, 
showing the advantages of the former. In Parliament a single com- 



262 



The American Federal State 



Suggestions 
for reform. 

Adams, 
Science of 
Finance, 
168-177. 



The House 
as an elec- 
toral college. 



Election of 
1800. 

Channing, 
§ 211. 



mittee, the Ministry, prepares the bills for raising and for expending 
money. The members of the House of Commons may offer amend- 
ments to either, but in case they are adopted the Ministry aim to 
alter the second bill so that the two will practically balance. 

Dr. Henry C. Adams, who is recognized as second to no other 
authority on financial questions in the United States, offers these sug- 
gestions for improving our system : — 

" First. The first step in this programme . . . consists in the estab- 
lishment of a budgetary committee, which shall have full and exclusive 
jurisdiction over the form of the budget when presented to the legisla- 
tive body for discussion and vote." 

He proceeds to show how this committee may be made responsible,., 
and why the task is not too great for one committee. 

" Second. It further lies in this plan that the right of individual in- 
itiative of money bills, as also the right of indiscriminate amendment, 
should be taken away from the individual members of the House of 
Representatives, whether the House is organized as a committee of the 
whole or in legislative session. In this regard the practice in England 
would seem to meet the requirements of appropriate organization." 

" Third. Better cooperation between the financial committee of Con- 
gress and the Treasury department, all communications taking place 
through the Secretary of the Treasury." (Adams's Science of Finance, 
pp. 172-176.) 

297. Election of a President. — Besides the special power 
of the popular chamber concerning matters of finance, and 
the sole right of impeachment, — discussed in the previous 
chapter, — the House of Representatives may be called 
upon to elect a President. This it has done twice. When 
the electoral college fails to give any one candidate a 
majority, the House proceeds to select one from the three 
who stood highest on the list of the electors. The vote is 
then taken by states, each state having one vote. 

In the election of 1800 the electors did not designate 
whether the candidates voted for were nominees for the 
presidency or vice-presidency, they merely cast two votes. 
As Jefferson and Burr each had seventy-three votes, the 
House was obliged to select one of the two, because it was 
a tie. The choice fell upon Jefferson only after thirty-six 
ballots. The twelfth amendment was adopted in 1804, 
which changed the method in certain particulars, and made 



The House of Representatives 263 

it necessary for the electors to designate the oflSce of each 
candidate. 

In the election of 1824 there were four men who received Election of 
votes in the college. Jackson had niuet)'-nine, Adams ^^^- 
eighty-four, Crawford forty-one, and Clay thirty-seven. Channing, 
The choice was limited to the first three, and as Clay held ' ^ 
views similar to those of Adams, by combining the votes 
of their followers Adams was elected by the House without 
difficulty. It will be easily perceived that the failure of 
the college to elect cannot recur under the present Consti- 
tution, unless there are more than two great parties or 
during the reorganization of parties. 

298. Characteristics of the House. — The meetings of The House 
the lower house are held in a large hall in the south wing ^^ ^'°''''- 

of the Capitol. The desks of the members are arranged in Ford, Amer. 
semicircular form about that of the speaker, the Republi- ^^^ ''"' ^^^ 
cans on his left and the Democrats on his right. When a 

, „ , 1 r 1 • Brjce, 108- 

congressman gains the floor, he may speak from his seat or ^^^ 
from the space before the speaker's desk. In either case 
he is likely to receive scant attention, as the hall is almost Cong. Gov't, 
always so noisy that difficulty is found in hearing any but ^^• 
the best speakers. Unless the subject is one of consider- 
able importance, the members are quite often in adjoining 
rooms, or if present are devoting their time to something 
else. For these reasons speaking and debate is much less 
prominent in the House than in the Senate, where the 
smaller room, and the more orderly deportment, give oppor- 
tunities for speakers to present their views to advantage. 

According to the Constitution each house is to keep a journal of its Publications 
proceedings. At present each has a journal published fortnightly, of Congress, 
■which gives a summary of measures introduced and all votes taken. 
The government also issues a daily report called the Congressional 
Record. This contains in full all speeches delivered in either cham- 
ber, as well as speeches for which there was not time or which were 
intended to be printed only for the use of constituents. 

299. The House and the Senate. — On account of the 
more popular character of the House, we should naturally 



264 



The American Federal State 



Sources of 
strength and 
weakness in 
the House. 

Ford, ibid., 
243-248. 

Bryce, 138- 
142. 



A still more 
centralized 
organization 
probable. 



expect to find it more powerful than the Senate; but, as 
already stated, this is not the case. Several causes have 
contributed to this, but none is more potent than the dif- 
ference in tenure. The chief element of the Senate's 
strength lies in its permanence. The retiring of but one- 
third of the members at one time, and the conservatism of 
the upper branch, have developed an organization appar- 
ently less perfect than that of the House, in reality much 
more efficient. The House has sought to hold its own by 
great centralization of power in the hands of its leaders; 
but this concentration hardly offsets the disadvantages pro- 
duced by short terms and a constantly changing membership. 

300. The Future Organization of the House. — it may be 

that in time the organization of the House will be still further centralized 
so that it can then dominate the Senate. If it were the custom to reelect 
representatives in most cases, this would probably be done in the near 
future, but such a change is not probable. It seems more likely to 
corae through the Committee on Rules. That committee has at pres- 
ent a great deal of power, much of it of a most arbitrary character, but 
its control is purely negative. No person and no committee is respon- 
sible to it. In turn, it is not directly responsible to the House. The 
suggestion has been made that something similar to the British Minis- 
try might be used in the House. If the speaker and the Committee on 
Rules were chosen not for a fixed period of two years, but were to con- 
tinue in office only so long as they had the confidence of the House, 
responsibility would be much more definitely fixed. If the committees 
were appointed as at present, and subject to the oversight and control of 
the Committee on Rules so that they worked in harmony with the latter, 
most of the advantages of the committee system would be retained with- 
out the great defect of a headless organization. The individual member 
would of course be obliged to give up some privileges for the sake of the 
whole body. But the House would be less like an army in which each 
corps works, to a large degree, independent of every other; and each 
regiment has, as far as possible, a plan of its own which it seeks to 
execute. 

QUESTIONS AND REFERENCES 

Composition (§§ 277-282) 

a. Early apportionments of representatives are considered by Will- 
iams, in Lalor, I, 102-1 1 1 ; Story, in his Commentaries, §§ 676-683, 
especially notes; James, E. J., in A. A. A., IX (1897), i-4i' 



The House of Representatives 265 

1. Give the advantages and disadvantages of increasing the term of 
office for representatives. "Would it be better on the whole for us to 
adopt the English custom of pajnng no attention to residence of repre- 
sentatives? Explain your answer. 

2. Can the abuse of gerrymandering be avoided by proportional 
representation? What would be the effect of proportional representa- 
tion on the district system ? 

3. Would it be ad\-isable to confer upon the courts the right to de- 
cide disputed elections? Give arguments on both sides. Should the 
committees have more power in collecting e'^'idence? 

i. How many congressional districts are there in your state ? In 
which one do you live? "SMiat counties (if more than one) are com- 
prised in it ? How does it compare in area and population with 
the others of the state ? (Cong. Dir., some Pol. Als., State Blue 
Book.) 

ii. Who is your representative at present? How many terms has 
he been in Congress? On what committees does he serve? For what 
bills has he been directly responsible ? Compare the vote at the last 
election with those of previous ones. (Last Cong. Dir. and Pol. Als.) 

iii. When do disputed elections become especially important? How 
many seats were contested at the beginning of the last session? Were 
the members of the dominant party seated in every case? 

Organization and "Work (§§ 283-291) 

a. Make a study of the lower houses in France, Germany, and Eng- 
land based upon Wilson's The StaU, §§ 402-405 (Fr.), §§ 516-529 
(Ger.), §§ 890-909 (Eng.) ; and Burgess's Comparative CoTistiiutional 
Law, Vol. II, Div. II, chap. II (Eng.), chap. Ill (Ger.), chap. IV 
(Fr.), chap. V (comparative study of all). 

1. Can you suggest any system that can be or could have been sub- 
stituted for that of the committees? Are the defects of our system 
inherent in it ? are they unavoidable because of our political ideals and 
methods, or may they be remedied? (Read references above, if possi- 
ble, before answering.) 

2. What means have the House and the people of making the Com- 
mittee on Rules and the speaker responsible? Is or is not an increase 
of their authority dangerous, and why? Would it be best to give the 
Committee on Rules the same right as the English ministry to intro- 
duce measures? How can we best remedy the two serious defects of 
our system, viz., lack of unity and lack of power to fix and enforce re- 
sponsibility, with or without changing the committee system? 



266 The American Federal State 

3. Give reasons why private bills should be left as much as possible 
to the committees. Does the House devote too great a proportion of 
its time to these bills ? 

i. Name in order the six committees you consider most important. 
Who is chairman of each? What members from your state are on any 
of them, and vi'hich ones? Do any of the committees appear to be sec- 
tional in their composition? 

ii. Who is the speaker of the House? From what state does he 
come? Who were his rivals for the speakership? Has any section 
had more than its share of speakers since i860? (See Appendix C.) 

iii. Mention at least three instances of pubHc bills passed by the last 
Congress. Give four classes of private bills. Mention recent cases of 
filibustering in Senate or House. 

iv. To what committees would the following bills naturally be as- 
signed (in case it might be appropriately given to more than one, 
name all) : Nicaragua Canal bill ; bill appropriating ^50,cxx) for a 
public building ; a pension bill ; bill enlarging powers of the Inter- 
state Commerce Commission; amendment to the Constitution; bank- 
ruptcy bill ; tariff bill for Philippine Islands ; bill providing for 
resurvey of public lands, for deepening the channel of the Missis- 
sippi, granting land to a transcontinental railroad, arranging for the 
purchase of armor plate, and revising the law of copyright. 

Special Powers (§§ 292-300) 

1. Can we ever make any person or set of persons absolutely re- 
sponsible for money bills under our present system and with present 
conditions? Explain, Do we have sufficient guarantee that the 
money will be well spent? 

2. What would be the advantages of giving the executive depart- 
ments more influence over the financial operations of Congress? the 
disadvantages ? 

3. Why was the election of a President, in case the college failed to 
select some one, left to the House of Representatives? Why was the 
vote to be taken as it is? Have the persons chosen commanded any 
less confidence on account of the method of choice? 

i. Consult the tables in § 295. What is the principal source of 
revenue at the present time? Which one can be increased most 
easily? To what extent has direct taxation been used ? 

ii. What item of expenditures has been greatest, taking our history 
as a whole ? Which items are increasing ? which ones decreasing ? 
Should any be curtailed, and if so, which? 



The House of Representatives 267 

iii. What is the amount of the public debt ? Of what parts is it 
composed ? What was the size of the debt in 1835 ' ^° ^^^7 ' ^"^ 
1890? Is it increasing or diminishing now? Why is it thought that a 
public debt is a good thing and continued surpluses are injurious to 
a government? (Pol. Als.) 

iv. In what year were the representatives chosen who elected 
Jefferson? WTio voted for Adams? Look up in Johnston's American 
Politics the composition of the houses in session in February, i8oi,and 
February, 1825, and compare each with that of the houses elected in 
November, 1800, and in November, 1824. Is any principle of demo- 
cratic government violated? 



CHAPTER XIII 

THE POWERS OF CONGRESS 
General References 

Hinsdale, The American Government, 194-235. 

Townsend, Civil Government, 157-207. 

Schouler, Constitutional Studies, 1 15-147. 

Cooley, Constitutional Law, 53-102. 

Burgess, Political Science a7td Comparative Constitutional Law, II, 
133-167. Discusses general principles. Authoritative. 

Meigs, Evolution of the Constitution, 122-159, 261-272. 

Boutwell, The Constitution at the End of a Century. Summary of 
some important decisions. 

The Federalist, Nos. XXIII-XLIII. 

Story, Commentaries, chaps. XIV-XXXI. The most complete exposi- 
tion of the law of the subject. 



Aim of the 
chapter. 



Extent of 
the power 
conferred. 

Hinsdale, 
§§ 341-347. 

Cooley, 
Const' I Law, 
53-63. 



301. General Powers. — All the legislative power granted 
in the Constitution to the United States government is 
vested in Congress. The different classes of these powers 
have been mentioned in two places, but they deserve a fuller 
treatment. It is the aim of this chapter to discuss some 
features of the most important powers which are not con- 
sidered at some length under other heads, and to note 
some of the means used by Congress in performing its 
constitutional duties. 

302. Taxation. — Article I, Section 8, of the Constitu- 
tion opens in this way: "The Congress shall have power 
to lay and collect taxes, duties, imposts, and excises, to 
pay the debts and provide for the common defence and 
general welfare of the United States; but all duties, im- 
posts, and excises shall be uniform throughout the United 
States." As is well known, the Confederation failed par- 

268 



The Powers of Congress 269 

tially because of lack of funds, its sources for revenue 
being (i) requisitions upon the states, (2) borrowing 
money, or (3) creation of paper money. There was no 
one thing upon which the convention was more unanimous 
than that the central government should have independent 
power of taxation. The right to levy " taxes, duties, im- 
posts, and excises "was therefore granted, subject to the 
restrictions that all direct taxes should be in proportion to 
population, and that the others should be uniform through- 
out the country. But it was thought best to state the 
objects to which this revenue was to be devoted. Fortu- 
nately, the term general welfare was inserted, which has 
made it possible for Congress to expend this money for any 
object over which the national government has constitu- 
tional control. The extent to which these different kinds of 
taxes have been used is taken up in the chapter on Taxation. 

303. Borrowing Money. — The Constitution directly con- United States 
fers the power to borrow money on the credit of the United bo^^is. 
States. This is done in several ways. Usually the national Hinsdale, 
government issues bonds, which it sells upon the market to " 348-356. 
the highest bidders. The rate of interest that is offered, 
and the premium or discount at which the bonds are taken, 
depend upon the credit of the government at the time 
rather than upon the amount of the existing debt. During 
all of our wars, and occasionally in times of peace, the gov- 
ernment has found it necessary to sell bonds. The largest 
amount ever issued at one time was in 1862, when the par 
value of the bonds was ^500,000,000, although the next 
year Congress authorized $900,000,000; but this second 
law was soon after altered. Most of the bonds of the Civil 
War were for six per cent, and sold at or near par. Dur- 
ing the Spanish- American War, when the government offered 
$200,000,000 worth of three per cent bonds for sale, more 
than six times as much was subscribed, most of it at a pre- 
mium. In view of these facts comment on the improved 
credit of the United States is unnecessary. At the present 
time the Secretary of the Treasury may sell three per cent 



270 



TJie American Federal State 



United States 
notes. 

Boutwell, 
Const, at End 
of Century, 
182-190. 

Power of 
Congress in 
regard to 
money. 



Legislature 
V. the execu- 
tive. 

Cf. Meigs, 
Growth of 
Const., 146- 
150. 

Hinsdale, 
§§ 400-408. 

Cooley, 
Const' I Law, 
88-92. 



Advantage 
of a small 
army. 



bonds without special action of Congress. This enables 
him to meet any special crisis, even if Congress is not in 
session. 

The United States may also borrow money by means of 
what is called notes. These are issued either for a short 
time or else for an indefinite period, and may or may not 
bear interest. In some cases, as with the "greenbacks," 
they have been made legal tender in the payment of debts. 

The national government has full charge of all matters 
relating to coins, coinage, and the prevention of counter- 
feiting; and the states are not permitted to issue bills of 
credit nor make anything but gold and silver coin a tender 
in payment of debts. 

304. Military Power : the Army. — The constitutional 
history of the English-speaking race is, to a large extent, 
a record of the struggle between the monarch and the rep- 
resentatives of the people to see which should have charge 
of all financial and military affairs. In this country at 
the present time the executive has nothing to say about 
the purse except in a negative way. But he still retains the 
monarch's position as military leader, though Congress has 
a great many checks upon him. It alone can declare war, 
raise and support an army, and create a navy, and make 
rules for the regulation of the land and naval forces, which 
the President is to execute; but even if it wishes, it cannot 
vote money for an army for a longer time than two years. 
Congress also provides for organizing and calling forth the 
militia " to execute the laws of the Union, suppress insur- 
rections, and repel invasions." The American people have 
always shown so great a distrust of a standing army that 
Congress has never authorized a force larger than was 
necessary to keep the Indians in order. This freedom 
from the militarism which binds Europe has been of ines- 
timable advantage, because it has left half a million of our 
ablest-bodied citizens at liberty to enter the ranks of pro- 
ducers instead of living upon the income of others. Before 
1898 the maximum of enlisted men permitted by law was 



The Pozvers of Congress 27 1 

twenty-five thousand, but present and future conditions will 
probably demand a much larger number. 

305. The Militia. — A great many believe that proper Rules for 
preparation for possible wars can be obtained without serious o'"ganization 
loss to our industrial life through a well-trained militia. At service. 
the present time, there are only a little over a hundred 
thousand men enrolled in this branch of the ser\dce, 
although theoretically the militia includes all able-bodied 
citizens between the ages of eighteen and forty-five who are 

not exempt, by national or state law. Each militiaman 
enrolled for service is pledged for three years, during 
which he receives arms and accoutrements free. He may 
be called out by the state executive or by the President, 
for any time not exceeding nine months, to repel invasions 
or put down insurrection. He is not compelled to fight 
on foreign soil, but is otherwise under the same regulations 
as the regular soldier when called upon to perform duty by 
the national government. 

The general rules for the militia are passed by Congress, and pro- Contrast 

vide for the method of organization, number of officers, method of between our 

election, and other details. Such matters as are not considered by ™' ?^ '^" 

foreign 
Congress are cared for by each state as it sees fit. The difference j-eserYes 

between the national guard and the Landwehr or other reserves in 
foreign countries should be carefully noted. Our militia is not a 
trained body in the same sense as these others, for it is not composed 
of members of the standing army who have given the required num- 
ber of years to their country, and are kept organized so as to be called 
on in case of need. Such a force is necessarily more efficient than a 
militia is likely to become. /< ' 

306. The Navy. — Most of those who have given the Value of a 
subject special study advocate a large navy as the best "^^' 
means of protecting ourselves from foreign enemies in 

time of war, and as a means of preventing war altogether. 
Since 1883 the United States government has done a great 
deal toward building up the navy, but even yet we rank 
(1901) fourth among the nations in the number of formid- 
able vessels. Need of defending our new colonies, as well 



2/2 



The American Federal State 



Different 
means for 
defence. 

Ayres, J. C, 
Forum, 
XXIV 
(1898), 416- 
421. 



Views 

regarding 

the extent of 

Congress's 

territorial 

powers. 

Judson, H. 
"P.MR.ofR. 
XIX (1899), 
67-75. 



Partial self- 
government 
and prepara- 
tion for 
statehood. 

Hinsdale, 

hk 589-597- 

Cooley, 
Const' I Law, 
170-172. 



as our own country, will probably induce Congress to vote 
large sums for new vessels in the near future, until we are 
able to cope on equal terms with the strongest naval powers 
in existence. 

307. Coast Defence. — Congress has made every effort to 
adequately protect our seaports by coast defences of different 
kinds. The most important of these are the coast-defence 
vessels, usually heavy-armored monitors or floating batteries; 
and the land batteries, composed of large mortars and very 
powerful guns, often mounted on disappearing carriages. 
The channels are well guarded by torpedoes or submarine 
mines controlled by electricity from the nearest fort or 
battery. Only upon the Great Lakes is the defence quite 
incomplete. By treaty with Great Britain we have agreed 
not to keep more than one war vessel, and not to fortify 
any harbors. 

308. Territorial Powers. — The national government has 
power to acquire, cede, and control territory. The Consti- 
tution does not directly delegate the first of these, but no 
right is now more firmly established than that of annex- 
ing territory. For this public domain Congress may make 
"all needful rules and regulations." Over it the power of 
Congress is very great. Different views regarding the ex- 
tent of that power are held by public men of prominence, 
some believing that all the limitations placed upon Con- 
gress by the Constitution apply to the territories as well as 
to the states, and others that Congress has full power over 
the territories by virtue of its sovereignty. 

309. Principles of Territorial Control. — The develop- 
ment of national power has gone hand in hand with our 
territorial growth. Attention has already been called to 
the causes which influenced the state* that had Western land 
claims under the Confederation to yield control of this 
Western domain to the United States in Congress assem- 
bled. These cessions began as early as 1780, and were not 
completed till 1802. In the famous Ordinance of 1787 for 
the territory northwest of the Ohio River, Congress pro- 



The Powers of Co7igress 



273 



ceeded to lay down two principles that have been pretty 
faithfully adhered to in all later acquisitions: (i) The 
territory is governed by Congress, but as the population 
increases the people are given a larger share in the gov- 
ernment; (2) preparation is made for the admission of 
states as soon as the population is sufficient and upon an 
apparent equality with the other states. 

310. Acquisition of Territory. — Since 1787 we have 
rarely failed to embrace any opportunity to enlarge our 
boundaries. The first addition was made in 1803, and 
consisted of nearly a million square miles called Louisiana, 
covering all of the western Mississippi basin and the isle of 
Orleans. In 18 19 Florida was purchased from Spain, and 
we gained a natural boundary on the southeast. In 1845 
we annexed, by joint resolution of Congress, the inde- 
pendent state of Texas, with extensive but indefinite 
boundaries on the west. The next year a treaty with Great 
Britain recognized our right to the Oregon County west of 
the Rockies and south of the forty-ninth parallel. At the 
close of the war with Mexico (1848) a large section of terri- 
tory south of Oregon and west of Texas was annexed, and 
(1853) a disputed strip in what is now the southern part of 
Arizona was added, the sum of $25,000,000 being given 
Mexico as compensation for this immense region. In 
1867 Alaska was purchased from Russia for ;^7, 200,000. 
Not until 1898 were any further changes made. In July 
of that year Hawaii was annexed by joint resolution, and 
later, by the treaty with Spain, Porto Rico and other 
islands were cede^^ .^d the Philippines we];e , transferred 

for $20,000,060.' sl^ *^wn-i ' ' ' iHi:'; d Ko'i'^'ii- ' ca-ttM- 

311. The Government of a Territory. — This dortiain has 
usually been divided into districts of a convenient size 
called territories. These territories are governed accord- 
ing to the law that may be prescribed by Congress, and are 
of two classes, organized and unorganized, the former always 
having a large degree of self-government, the latter being 
governed from Washington. 

T 



Territorial 

growth 

(1803-1898; 

Hinsdale, 
h\ 584-588. 



>4^' 

Organized 
and unorgan- 
ized terri- 
tories. 

Cf. § 628. 



274 



The American Federal State 



Degree of 
self-govern- 
ment in the 
organized 
territories. 

Bryce, 389- 
400. 

Cooley, 
Const' I Law, 
172, 173. 



Degree of 

national 

control. 



Government 
of Washing- 
ton, past and 
present. 

Meriweather, 
C, in P. S. Q. 
XII (1897), 
409-419. 

Process of 
admission. 

Cooley, 
Const' I Law, 
17S-183. 



In what we may call the territorial, as distinguished from 
the colonial government, we have a combination of self- 
government with control by the United States. The legis- 
lature of two houses is chosen by the people for a term of 
two years, and its sessions are biennial. The legislature 
has almost as full power as the legislatures of the states, 
subject of course to the negative of Congress. Each ter- 
ritory chooses a delegate, who sits in the House of Rep- 
resentatives and may speak on bills affecting the territory, 
though he has no vote. The people also elect all judges, 
except the very highest, and all local officials. 

Yet national control is quite prominent even in a " self- 
governing" territory. The President appoints, by and with 
the advice of the Senate, the governor, the secretary, the 
three judges of the highest court, the district attorney, and 
the marshal, all of whom hold office for four years. The 
number of members of the legislature and the qualifica- 
tions of voters are determined, not by territorial, but by 
congressional law. The governor has general executive 
power, is head of the militia, and has power to pardon 
offences against territorial law. He has, in addition, a 
two-thirds veto over the legislature. Congress may at any 
time change the government of a territory, and it at all 
times reserves the right to annul a law of the legislature. 

312. The District of Columbia is governed by Congress 
as it sees fit. Until 1870 the city of Washington was 
allowed a regular municipal government. Then for some 
years it was governed more directly by Congress; but 
since 1878 control has been exercised through three com- 
missioners appointed by the United States legislature, with 
pretty complete power to appoint, and to make ordinances. 

313. Admission of New States. — These territories may 
be admitted to full statehood by Congress at its discretion. 
It often happens that the territory which desires admission 
calls a constitutional convention so as to adopt and ratify 
a constitution before applying. If its request meets with 
favor, it is then admitted at once. More frequently Con- 



The Powers of Congress 275 

gress passes an "enabling act," which designates the boun- 
daries of the new states, names the qualifications of voters 
who shall elect a convention for the purpose of framing a 
constitution. It may go further and specify certain condi- 
tions that must first be fulfilled, such as provisions for pub- 
lic schools and renunciation of all claims to public lands. 
If the constitution accepted by the people is satisfactory 
to Congress, and if that body believes the conditions have 
been met, the territory is declared to be a state of the 
Union. 

314. Limitations on Admission of New States. — In the Constitu- 

admission of new states the Constitution prescribes certain ^\°"^^ P''°' 

^ visions, 

limits beyond which Congress shall not go. When the 

Constitution was formed there was very great dread among j^gJtarieT' 
the states that Congress might interfere with them, so the 
express provision was inserted that " no state shall be formed 
or erected within the jurisdiction of any other state, nor 
any state be formed by the junction of two or more states, 
or parts of states, without the consent of the legislatures 
of the states concerned as well as of the Congress." The 
only time that these clauses have been in any way violated 
was in the admission of West Virginia, in 1863. The state 
of Virginia was in rebellion, but the western counties re- 
mained loyal. A new constitution was adopted ostensibly 
by the whole state, really by this one section. Its senators 
and representatives were recognized by Congress, and the 
name West Virginia given to the state. After the war the 
Virginia legislature gave its consent to the change. 

315. Congress in the States. — It has always been the Conditions 

aim of our federal system to prevent Congress from inter- ^?'^ ^^f^^ 

■' ^ ° . interference. 

fering in the states except with those matters under its 
immediate charge. Yet one power given by the Constitu- comJiLaw 
tion has furnished the excuse for territorial control of the 202-206. 
states by the national legislature. It is contained in Sec- Hinsdale, 
tion 4, Article IV, and reads as follows: "The United ^§598-603. 
States shall guarantee to every state in this Union a repub- 
lican form of government, and shall protect each of them 



276 



The American Federal State 



Use of the 
power. 

Johnston, in 
Lalor, II, 
543-545- 



Commercial 
powers in 
the conven- 
tion. 

Meigs, 
Growth of 
Const., 135- 
138. 



against invasion, and, on application of the legislature or 
of the executive (when the legislature cannot be convened), 
against domestic violence." 

It must be perfectly evident that the Union cannot exist 
as a Federal State if the states differ greatly in their political 
or social institutions, and, consequently, it was necessary 
to give Congress power to prevent the establishment of 
monarchical or other anti-republican forms of government. 
In reconstruction times this clause was given as a reason 
for the constitutional interference of Congress in the South- 
ern states. It was asserted that a republican form of gov- 
ernment did not exist, and that Congress should care for 
state affairs until it was evident that a republican form of 
government would be maintained. 

The other clauses of this section will be considered under 
the military power of the executive (§§ 339, 340). 

316. Commerce with Foreign Nations. ■ — The lack of 
power to regulate commerce was one of the principal causes 
which produced the federal union of 1787. The naviga- 
tion laws made by Parliament had been so odious that the 
states were careful not to intrust the Congress of the Con- 
federation with the charge of commercial matters, except 
so far as they may have been affected by treaties with other 
countries. But if the history of the Confederation showed 
anything, it proved that the states were incompetent to deal 
with a subject in which uniformity was so much needed. 
There was, accordingly, little difference of opinion among 
the members of the convention as to the need of central 
control of commerce, but there nevertheless appeared con- 
siderable opposition to giving Congress full power over it. 
An unsuccessful attempt was made by the anti-commercial 
element of the South to require all navigation laws to be 
passed by a two-thirds vote; but by making concessions by 
which the slave trade was permitted for twenty years, the 
New England states succeeded in removing the two-thirds 
clause, so that commercial laws were made in the same way 
as all others. The agricultural sections of the country were. 



The Powers of Congress 277 

however, able to insert in the Constitution a provision that 
no duty should be laid on goods exported from any state. 
Duties on imports were permitted as well as other com- 
mercial regulations by treaty or by law; but all duties were 
to be "uniform throughout the United States," and "no 
preference shall be given by any regulation of commerce or 
revenue to the ports of one state over those of another." 

317. Means of promoting Foreign Commerce. — All mod- Through 
em nations have taken pains, directly or indirectly, to pro- commercial 
mote the commercial interests of their citizens. Almost all 

seek to protect industry within their borders by protective 2vtertca». 
tariffs; and they are in the habit of bidding for the favor Diplomacy, 
of other nations, by modifying these tariffs, if a similar 421-424- 
reduction can be obtained from the country with whom they 
are dealing. This general principle is called " reciprocity, " 
and has been used by our department of State under laws 
of Congress. Another method somewhat similar is to in- 
crease trade by treaty through what are known as the " most- 
favored nation " clauses. That is, if we make a commer- 
cial treaty with Italy, in which both parties agree that the 
other shall have all the advantages of the most-favored 
nation, then any special privilege Italy may later extend to 
a third country will, by virtue of the treaty, be granted to us. 

Still another way of fostering foreign commerce or in- Subsidies, 
creasing our carrying trade is by the granting of bounties Hadiey, A. 
or subsidies to persons who build and equip American T., in Laioi, 
vessels. Foreign States have used this artificial means to -0-2. 
foster their merchant marine, with greater or less success; 
but until recently the navigation laws of the United States 
have left our marine to look after itself. This it did with 
the greatest success until after 1850, at which date we were 
second only to Great Britain in carrying trade; but since 
then, for many reasons, we have been unable to compete on 
equal terms with foreign vessels, till scarcely ten per cent 
of our foreign commerce is carried in American bottoms. 

318. Interstate Commerce. — Commerce between the Power of 
states is necessarily a subject for which the states cannot Congress. 



2/8 



The American Federal State 



Cooley, 
Const' I Law, 

Story, Com- 
inentaries , 
\\ 1066-1075. 

Boutwell, 
Const, at End 
of Century, 
190-204. 

Aid given by 
the govern- 
ment. 

Johnston, in 
Lalor, II, 
568-573- 



Historical. 

Hotchkiss, 
W. H., in 
N. A. R., 167 
(1898), 580- 
591- 



Law of 1898. 

Dunscomb, 
S. W., Jr., in 
P. S. Q. 
XIII (1898), 
606-613. 



properly legislate. During most of our history the action 
of Congress has been largely negative, confined to keeping 
the states from interfering with the navigation and control 
of rivers that flow through more than one state or between 
states. With the increase of railway traffic, congressional 
law became inevitable, and led to the creation of the Inter- 
state Commerce Commission, and to the anti-trust legis- 
lation already mentioned (§ 218) and to be discussed later 
(§613,618). 

The development of inland, as well as foreign commerce, 
has been assisted by the appropriations made by Congress 
for the improvement of rivers and harbors. An immense 
amount of work has been done in widening and deepening 
channels, in building breakwaters, in erecting lighthouses, 
and in other ways. The magnitude of these improvements 
may be indicated by the statement that a single appropria- 
tion bill, that of 1897, authorized contracts for the improve- 
ment of rivers and harbors aggregating over $60,000,000. 

319. Bankruptcy Laws. — Even in 1787 the leaders of 
political thought realized that bankruptcy laws should not 
be subject to the differences and uncertainties of state law, 
but should be the same in New Hampshire as they were 
in Georgia. In point of fact. Congress has acted tardily 
and hesitatingly on this important subject, and the states 
have passed many laws for insolvents which the national 
courts have recognized as constitutional during the times 
Congress has done nothing, which cover the great part of 
the last century. In 1800 a law was passed which was in 
force three years. In 184 1 another bankruptcy law lasted 
an even shorter time. 1867 saw the third attempt, but this 
law was repealed in 1878. Finally, in 1898, the present 
law was passed. A distinction is made between the volun- 
tary and involuntary bankrupt; the former being given the 
opportunity to pay off his debts with what assets he pos- 
sesses, while the creditors of the latter are guaranteed pro- 
tection against fraud and, consequently, against unnecessary 
loss. 



The Powers of Congress 



279 



320. Coins. — In order that the business of a country 
may not be unnecessarily embarrassed, the central govern- 
ment must be given power to make uniform laws regarding 
the standards of value and measurement. The Constitu- 
tion gives Congress the right to determine what metals shall 
be used for coins, which one or ones shall be the standard, 
what amount of each metal is to be used in the different 
pieces of money, and what value foreign coins shall legally 
have when used in the United States. The Congress of 
the Confederation adopted the decimal system, suggested 
by Morris and simplified by Jefferson. This convenient 
scheme has been continued and is still in use; although 
until 1900 we had, theoretically, two standards, gold and 
silver, whereas now we have but one, gold. The states are 
forbidden to coin money or to issue paper money, but they 
may create banks, which have the right to issue bank notes 
— which are never legal tender. At the present time a tax 
of ten per cent by Congress upon such state bank notes 
is of course prohibitory. Congress has also full power to 
punish counterfeiters of national currency, so as to protect 
the individual in the use of coin of the realm. 

321. Weights and Measures. — The English system of 
weights and measures was in universal use and was, 
naturally, the one selected by Congress. Several attempts 
have been made to have the metric system adopted; but 
although Congress has declared the use of the metric stand- 
ards to be legal, they have not been widely accepted by 
the business people of the country. 

322. Naturalization. — We have already considered the 
process of naturalization (§ 252), and can readily appreciate 
that to leave such a subject to the separate states would be 
the height of folly. Even when the great majority of the 
population believed there was no United States citizenship, 
very few desired to deprive Congress of the power to regu- 
late this subject. The laws passed have not been very dif- 
ferent from the one in operation now. Except from 1790 
to i795> when the period of residence required was two 



National 

power 

and state 

limitations 

regarding 

coinage. 

Hinsdale, 

hk 357-367- 
388-390. 



The English 
system used. 

Hinsdale, 
§387- 



History of 
naturaliza- 
tion laws. 



28o The American Federal State 

years, and from 1798 to 1802, when it was increased to 
fourteen years, the time has always been five years. The 
most ambitious attempt to keep foreigners from citizenship 
was that of the " Know-nothing " party during the fifties, a 
very great extension of time being favored. 
Individual Naturalization has been accomplished in one of two 

andcoiiec- ^y^yg . individually, where a single person makes out his 
ization. papers as described; and collectively, where by law or 

treaty a number of aliens are declared to be citizens, as in 
the treaty by which Louisiana was purchased, the treaty 
of Queretaro (1848), or the fourteenth amendment. At 
present the laws restrict individual naturalization to persons 
of the white or black race. 
Punishment 323. Treason and Piracy. — The most important crimes 
of each. ^.j^^^ come under the control of the United States govern- 

Hinsdaie, ment relate to piracy and treason. It is left for Congress to 
§§ 559-568. (jgcide what constitutes the former, but the latter is defined 
Burgess, /'(j/. jn the Constitution. Yet Congress may regulate the punish- 
ment of treason as well as of piracy. In reality the laws 
relating to treason have been marked by leniency. If we are 
in any doubt concerning this, we have only to compare the 
wholesale confiscation acts passed by the state legislatures 
for the Tories at the close of the Revolutionary War with 
the treatment of the Southerners after the War of Secession. 
Hinsdale. 324. Other Powers. — Among the other powers expressly 

hh 391-398. conferred upon Congress are the right to create post-ofifices 
and post roads (§ 358) ; to vest the appointment of officials 
in the higher executive officers; to make uniform laws on 
patents and copyrights for the encouragement of inventive 
and literary ability (§364); to create national tribunals 
inferior to the Supreme Court (§§ 385-388) ; to make laws 
regulating the election of senators, representatives, and 
presidential electors; to determine the compensation of 
all national officials; and to provide for amendments to the 
Constitution by a two-thirds vote of both Houses. 

325. The Elastic Clause. — As I have already stated in 
other connections, the power that has infused life into 



Science, II, 
147-150, 



The Powers of Congress 



281 



these powers of Congress is contained in what is known as 
the "elastic clause," that "Congress shall have power to 
make all laws which shall be necessary and proper for carry- 
ing into execution the foregoing powers and all other 
powers vested by this Constitution in the government of 
the United States or in any department or officer thereof." 
It is probable that the different departments of the central 
government would have sooner or later accepted the doc- 
trine of implied powers without this clause, but the con- 
stitutional difficulties would have been very much greater 
without it. Of late years there has been a tendency to go 
further than even implied powers would naturally permit, by 
claiming that powers can be exercised by the United States 
government because of its inherent sovereignty, without 
regard to the powers delegated either express or implied. 
Even supreme court justices, considered the most conserva- 
tive of our officials, have indirectly given an indorsement 
of this view in the Legal Tender Cases and in later deci- 
sions. Such a method of interpreting the powers of Con- 
gress will of course insure its ability to legislate for all 
subjects that may come up, and which even we at this time 
cannot foresee; but it must have a very great influence on 
the character of our federal system in the future. 



Influence of 
" implied 
powers " on 
position of 
Congress. 

Boutwell, 
Const, at End 
of Century, 
231-233. 



QUESTIONS AND REFERENCES 
Financial Powers (§§ 301-303) 

1 . Was too much power of taxation given to Congress by the Con- 
stitution? Would it have been beneficial to the country at large to 
have part of the revenue from imports distributed among the states? 

2. What objections are there to having direct taxes levied by the 
central government? Is the rule that all direct taxes must be levied in 
proportion to population a wise one at present? Explain your answer 
fully. 

Military Powers (§§ 304-307) 

I. Are the dangers that come from lack of military arrd naval prepa- 
ration greater or less than those which may result from having a strong 
army and navy, and what are they in each case ? 



282 The American Federal State 

2. Assuming thorough and careful preparation for war as a neces- 
sity, would it be best to devote most attention to the army, the militia, 
the navy, or coast defence, and why ? 

3. Have any changes of military policy been caused by the 
new international relations of the United States? by the acquisi- 
tion of distant colonies? by the construction of the Nicaragua 
Canal ? 

i. How large is our army? Are there any volunteers? Who is the 
commanding general ? What departments are there ? How are the 
forces organized? 

ii. Look up the number of each class of vessels in our navy. How 
does it compare with the number in 1890? With those of the same 
classes of Great Britain? France? Germany? (Pol. Als.) What is the 
difference between a battleship and a cruiser? between an armored and 
protected and an ordinary cruiser? 

Territorial Powers (§§ 308-315) 

a. "Territorial Growth of the United States," Hinsdale, How to 
Study History, 253-276; Johnston, in Lalor, I, 93-99 ; Donaldson, 
Public Domain, 89-145 ; Bicknell, Territorial Acquisitions of the 
United States. 

1. At the time, what has been the feeling in regard to the annexa- 
tion of the territories mentioned in § 310? Has the nation been unani- 
mous about any one ? In what instances was there decided protest 
from particular sections, and from which ones ? Is there general regret 
over any annexation we have made? 

2. What constitutional right have the territories to self-government? 
How are the territorial " constitutions " framed ? how amended ? Is 
there government with the consent of the governed ? 

i. What territories are organized at the present time ? What differ- 
ence is there between the government of Arizona and that of Hawaii ? 
What territories are still " unorganized " ? How- is each governed ? 
(Revised Statutes and Statutes at Large.) 

ii. Make a careful study and a comparison of the governments of 
Porto Rico and Hawaii. What differences, if any, do you notice in the 
executive, legislative, and judicial departments in suffrage, in represen- 
tation in Congress, etc.? (Current History, 1900.) 

iii. What was the last state admitted, and when? Were any special 
restrictions placed upon it or upon those which came in just before il i 
Can these restrictions be altered by state law? 



The Powers of Congress 283 

Commercial and Other Po'werB (§§ 316-325) 

1. Is modern government more or less "paternal "in its treatment 
of industry and commerce than of other subjects ? Make a list of all 
the things done by the United States government to promote its com- 
mercial interests. Are any of them in your opinion unwise ? 

2. What constitutional rights has the United States to fix rates for 
interstate commerce? to improve New York harbor? to build the Nica- 
ragua Canal? to give Frenchmen lower rates on imported goods than 
Brazilians? 

3. Are there any other powers besides those exercised by Congress 
that could with advantage to the United States be given that body? 
If so, what are they, and why should they be used by the central 
government ? 

i. Which of our tariffs have been most distinctively protective, and 
in what particulars? With what nations have we commercial treaties? 
Which ones of these permit reciprocity? 

ii. How many aliens came to this country last year? Of these, how 
many cannot be naturalized under the present laws ? How many were 
there from England ? Canada ? Germany ? Italy ? Hungary ? What 
nations have sent the largest number of persons since 1820 ? (Pol. 
Als.) 



CHAPTER XIV 

THE PRESIDENT 
General References 

Hinsdale, The American Government, 248-283. 

Bryce, The American Co7jimonwealth (abd. ed.), 22-63. 

Harrison, This Country of Ours, 68-180. 

Burgess, Political Science and Comparative Constitutional Law, II, 
216-263. 

Wilson, Congressional Government, 242-273. 

The Federalist, Nos. LXVII-LXXVII. 

Meigs, Growth of the Constitution, 192-234. 

Stanwood, History of the Presidency. Candidates, issues, platforms, 
and political conditions of each campaign. 

Mason, The Veto Power. 

Baldwin, Modern Political Institutions, 80-116. Discusses the abso- 
lutism of the presidency. 

Lalor's Cyclopedia. 



Head of the 

executive 

hierarchy. 

Goodnow, 
Comp. 

Admin. Law, 
I, 62-70. 



326. The President's Position. — The most conspicuous 
personage connected with our system of governments is the 
President of the United States. This is due not only to 
the method of election, which serves to centre popular 
interest in the presidency once in four years, but to the 
prominence of the duties assigned our executive and the 
centralization of executive power in his hands. He repre- 
sents most nearly the sovereignty and dignity of the nation 
in all international relations, in the control of military 
matters, and in affairs of peace. He controls absolutely 
the executive department, not so much because the Consti- 
tution vests him with executive powers, as for the reason 
that all executive officials are directly or indirectly ap- 
pointed by him, can be removed at any time, and are 

284 



The President 



285 



responsible to him in the performance of their duties. 
That is, the executive department is the most completely 
organized part of the United States government, every 
inferior civil officer being directly subordinate to the Presi- 
dent, in whom is centred all power. In this respect he 
presents great contrast to the English King, whose func- 
tions are exercised by a body no longer responsible to him, 
and to the state governor, who has no control whatever 
over the majority of the executive officials in his state. 

327. Qualifications. — In the election at the present time, 
the constitutional qualifications are the same as those ex- 
isting one hundred years agoj but there are certain other 
requirements that usually have to be met. The Constitu- 
tion prescribes that the President must be at least thirty- 
five years of age, a native-born citizen, and a resident of 
the United States for fourteen years. It is hardly necessary 
to add that at the present time he must be identified with 
one of the political parties, and run as the candidate of 
that party. 

328. Term and Compensation. — It was only after a great 
deal of discussion and many changes that the convention 
of 1787 finally selected four years as the term of office. 
As nothing was said about reeligibility, it remained for 
custom to place a fixed limit upon the term possible for 
any one man. It would have been easy for either Wash- 
ington or Jefferson to have been chosen a third time, but 
each preferred the seclusion of private life. Later Presi- 
dents did not wish to alter the rule; and since the futile 
attempt made by Grant's adherents to nominate him a third 
time (1880), it has become a practical impossibility for 
any one to break the "third term tradition." 

There has recently been quite a little discussion about 
altering the term of office, going back to the six or seven 
years preferred by the convention at first, and not allowing 
the President to be reelected. The reasons for this sug- 
gestion are found in the objections to the exciting cam- 
paign every four years, and to the bad effect which a desire 



Constitu- 
tional and 
practical re- 
quirements. 

Cf. Meigs, 
Growth of 
Const., 209- 
211, 312-314. 



The third 
term tra- 
dition. 

Tiedemann, 
Unwritten 
Const., 51-53. 

McMaster, 
With the 
Fathers, 
55-70. 



Agitation for 
a six-year 
term. 

Bryce, 52-56. 



286 



The American Federal State 



Salary. 



to remain in office has upon a President's policy during 
the last two years of the first term. There can be no doubt 
that these objections are well grounded. Yet there is much 
to be said on the other side. Four years have been all too 
long for some of the Presidents we have had. Six years 
would mean no reeligibility, so that a satisfactory Presi- 
dent could not be retained. Or if he might be elected 
again, he would have a stronger hold upon the patronage, 
which always plays a part in elections, and would pander 
still more to popular prejudice, as reelection would be 
more difficult if the term were six years. 

The salary of the President was at first $25,000 a year. 
In 1873 it was raised to ^50,000. In addition, the execu- 
tive mansion is placed at the disposal of the President, and 
the government pays most of the expenses incurred in the 
performance of diplomatic and social duties, aggregating 
about $200,000 a year. 



Method from 
1788 to 1804. 

Johnston, in 
Lalor, II, 
60-69. 

Hinsdale, 
\\ 451-460. 

Harrison, 
This Country 
of Ours, 
73-84- 



329. First Method of Election. — As we have already seen, the 
constitutional convention, after considering many ways of choosing the 
President, finally decided to leave the choice with electors chosen by 
the states in the way prescribed by each. These electors were equal in 
number to the representatives and senators from that state, and were, 
at the first, usually themselves elected by the state legislatures. It was 
the intention to name the best men possible, and permit them to use 
their own judgment in the selection of the executive, the only limita- 
tions upon the freedom of choice aside from the qualifications named 
above being that the candidates for President and Vice-president should 
not both be from the same state. At the first elections the electors did 
not vote for separate candidates for the two offices of President and 
Vice-president, but cast two ballots (Constitution, II, § i, cl. 2) for Presi- 
dent. The person receiving the highest number was then declared 
President, and the second on the list was declared Vice-president. 
Owing to the difficulty that arose from the Jefferson-Burr contest of 
1801, this method was superseded in the twelfth amendment by that 
in use at the present. Even before that time the electors had become 
a mere cog in the machine, registering the popular will. 



Nomination of a President. — The method of choos- 



The nomi- 

nating con- "^"^ 

vention. ing a President now in use involves the nomination, the 



The President 



287 



choosing of electors, and the meeting of the electoral col- 
lege. The nomination at the beginning was by general 
consent, later through congressional caucuses, and since 
1832 by national party conventions. The convention ordi- 
narily consists of twice as many delegates as there are 
members of Congress, and is held in May, June, or July of 
the presidential year. Candidates have been suggested in 
different parts of the Union, and each has had his agents 
busy for the purpose of securing delegates favorable to 
himself. It may sometimes be known before the conven- 
tion meets who will be nominated, but such cases are not 
common. It usually requires quite a number of ballots to 
decide what person shall be the nominee. He is soon after 
informed of his nomination, and sends in his letter of 
acceptance, which may amount to a second platform. 
(Cf. §§ 546, 547-) 

In the selection of candidates it often happens that the 
ablest leaders of the party are set aside for a comparatively 
unknown man. This is especially apt to be the case where 
several ballots have been taken without result, so choice 
falls upon a "dark horse." But it is due still more to the 
lack of availability often found in a man of parts. During 
his long public career he has probably made many enemies, 
and excellent though his record may be, he will poll fewer 
votes than a new man. He may not be from one of the 
large states, or one of the close states, which the party 
feels must be carried. 

331. The Campaign. — The campaign begins early in the 
autumn, or it may date even from the latest convention. 
Each party seeks to perfect its organization, to collect large 
campaign funds from prominent members, and persons 
especially benefited by the policy of the party, and to 
whip into line the malcontents who may be dissatisfied with 
the candidate or the platform. Less attention is now paid 
to those features which attract and excite, and the cam- 
paigns are more likely to be "educational." Through the 
platform and the press, party orators and writers aim to 



Bryce, Amer. 
Commoii- 
wealih (3d 
reg. ed.), II, 
185-202. 



Conditions 

affecting 

nomination. 

Bryce, 58-63. 

Cf. Wilson, ■ 
Cong. Gov't, 
246-254. 



Methods 
used. 

Bryce, Amer. 
Common- 
wealth (3d 
reg. ed.), II, 
203-212. 



288 



The American Federal State 



Objections 
to the cam- 
paign. 

Bryce, 214, 
215. 



Organization 
and election. 

Burgess, Pol. 
Science, II, 
216-221. 



explain the principles they indorse, and by argument and 
illustration to convince those who come within the sphere 
of their influence. This difference in method is accom- 
panied by a Jess blind adherence to parties for their own 
sake than was common fifty or even twenty years ago, though 
we cannot yet boast that the educational standard of the 
campaigns is high. 

It can readily be appreciated that the business of the 
country is greatly disturbed by this excitement and the 
uncertainty of the policy to be pursued by the new gov- 
ernment. The campaign really lasts for six months, and 
during this time there is a marked business depression, as 
no one is willing to buy or sell more than is necessary until 
he knows what is going to be done. Another objection to 
this quadrennial upheaval is the danger that arises from 
disputed elections. The excitement in 1801 and 1877 was 
so intense that nothing but the good sense of the persons 
most interested, and the self-control of the people prevented 
disorder. In a South American State nothing could have 
averted a revolution. There is danger, also, that if the 
issues are at all sectional, the people will become more 
conscious of their antagonism to each other, and that, con- 
sequently, sectionalism will be increased. Yet with all its 
disadvantages there is no one thing that has brought the 
people so close to the national government, or has made 
them so familiar with its plans and needs, as the presiden- 
tial campaign. With our democratic institutions it seems 
worth all it costs. 

332. The Electoral College. — The vote is polled the 
Tuesday after the first Monday of November in leap years 
and 1900. Two things should be noticed: first, the can- 
didates for President and Vice-president are not the ones 
voted for, though their names may appear upon the ballot; 
but in place of them are the party electors, equal in number 
to the representatives and senators in that state. If the 
vote of the state is close, it may be found that some of the 
electors of one party have been chosen while the rest are 



The President 



289 



Selection of 
President, 



from another party. Second, the suffrage depends upon 
state law, with certain limitations (United States Constitu- 
tion, Amendments XIV, XV). For this reason we find 
women voting in Wyoming, while in Louisiana many of 
the adult males are shut out by the alternative educational 
or property qualification. 

As soon as it is known how the vote of the state stands, 
there is no longer any doubt about who will be next Presi- 
dent. To be sure, the obligation on the part of an elector Burgess, ii, 
to vote for his candidate is a purely moral one, but is not ^^^"^^5- 
likely ever to be broken. The actual election of the Presi- 
dent occurs on the second Monday of January, when the 
electors meet at their state capitals and cast their ballots. 
These are forwarded by mail and by messenger to the presi- 
dent of the Senate, who opens and counts them in the 
presence of both houses of Congress on the second 
Wednesday of February. 



333. Counting the Electoral Votes. — a good deal of difficulty 

has been caused by contests over what electors should be recognized 
in case of dispute. The election of 1876 is the one whose result turned 
upon the decision of this question. Two lists of electors were sent in 
from Louisiana and other states. In the House the Democrats had 
a majority, and in the Senate the Republicans, so that no settlement 
could be made by regular vote. It was finally decided to have a com- 
mission of fifteen members, five from each house and five from the 
Supreme Court, who should have power to count the votes. This 
was done, and a decision rendered two days before the date set for 
inauguration. In 1887 Congress passed the Electoral Count Bill, ac- 
cording to which all future difficulties are to be solved. The states 
have full charge of elections, and decide what electors have been 
chosen. If only one set of electors is returned by a state, they are 
accepted without question. If there are two sets, but one has been 
declared legal by a court, or one has the state executive signature 
while the other has not, that one shall be received. 

The method of choosing the electors is now uniform throughout the 
country, but has varied greatly in times past. At first the system of 
election by legislature was quite common, and was in use in South 
Carolina until i860. Rhode Island was the first state to regularly 
adopt the election by general ticket in 1800. The district system 
u 



The electoral 
count bill. 

Burgess, II, 
224-238. 



Historical 
methods of 
selecting 
electors. 



290 



The American Federal State 



Proposed 

election by 
popular vote. 

Carlisle, J. 
G. Forum, 
XXIV 
(1898), 651- 
659- 



The Vice- 
president. 

Burgess, Pol. 

Science, 

238-240. 

Johnston, in 
Lalor, III, 
134. I3S- 



The Cabinet. 



was extensively used from 1792 to 1832, but since that date Michigan 
has been the only state that has tried it. (For details the student is 
referred to Hinsdale's American Government, p. 259.) 

334. Other Plans of choosing the President. — During the 
last few years there has been a strong movement to change 
the Constitution so as to have the President chosen by 
popular vote of the whole country. This would do away 
with the possibility of electing as President the candidate 
who polled fewer votes than his opponent. It would make 
it unnecessary to select men just because they could carry 
close states, it would reduce the chances of electing a can- 
didate by bribery in a close state, and it would seem to be 
more in accordance with present-day methods. On the 
other hand, it would require a constitutional amendment 
which would be difficult to get. Uniform suffrage laws 
would be a practical necessity ; and, in view of the close- 
ness of the popular vote in recent elections, election by 
fraud jvould be even more dangerous than under the present 
system. It is possible that some plan of minority repre- 
sentation may be devised that will permit us to choose our 
electors as at present, and yet gain all of the advantages of 
election by popular vote. 

335. Presidential Succession. — In case of death or resig- 
nation of the President he is succeeded by the Vice-presi- 
dent. This official must have the same qualifications, and 
is chosen in the same way as the President. It has been 
the custom to give the second place on the ticket to a sec- 
ond-rate man, who will be likely to bring the party votes 
at the November election. The danger of selecting a fac- 
tional leader not in harmony with the party is clearly shown 
in the administrations of Tyler and Johnson. 

If both the President and Vice-president should die, the 
succession lies with the members of the Cabinet, beginning 
with the Secretaries of State, Treasury, and War, and con- 
tinuing in the order in which the portfolios were created. 
Before 1886, by the law of succession (which may be altered 
by Congress at any time), the presiding officer of the Sen- 



The Presidettt 29 1 

ate, and then of the House, was to become President in 
case of vacancy. This was open to two serious objections. 
These officials might belong to a party different from that 
of the President, and by the death of President and Vice- 
president, when there was no president pro tempore of the 
Senate or speaker of the House, the presidency might lapse 
altogether. 

336. The Inauguration. — The inauguration of a Presi- The cere- 
dent occurs on the 4th of March following his election. 1^°"^^^"'^ 

^ ° the address. 

It is one of the most prominent social events connected 

with the life of the nation. The ceremony is quite im- y^^-j country 

pressive, and always draws large numbers of strangers to of Ours, 

Washington. After taking the oath of office, which is 9^"^' 

administered by the chief justice, the President delivers 

his inaugural address. This may outline his general policy 

and be a document of considerable weight, as in 1800 and 

in i860, but it ordinarily has little influence on the course 

of events. 

Immediately after the inauguration the President calls First months 
the Senate together, unless it is his second term. To it '" ° '^^' 
he sends his nominations for cabinet and other prominent 
officers, who have, in all probability, been selected several 
weeks before. He is apt to devote most of his time 
during the first summer to the selection of the persons 
whom he shall appoint to various offices under the gov- 
ernment. 

337. Powers : Historical. — When the Convention met in Executive 
1787 the feeling of distrust of "one-man power" was quite g^'J^Jg^j^^'^ 
prevalent. The abuses by colonial governors had been so century. 
numerous, and the actions of George III so objectionable, coodnow 
that the first state constitutions either did not recognize an Comp. Ad- 
executive at all, or placed the executive powers in the 2"'"^'*''*^ 
charge of a committee; or if the executive was single, 61. 
reduced his powers to a minimum. A slight reaction 

against this extreme position occurred during the next ten 
years, and was undoubtedly strengthened by the executive 
inefficiency of the committees of Congress. In all proba- 



292 



The American Federal State 



Execution by 
peaceful 
means and 
through the 
army. 

Harrison, 
113-118. 



Ordinance- 
making 
power. 



Extent of 
the power. 

Schouler, J. 
B., in Forufft, 
XXIII 

(1897), 
70-74. 



bility, however, the extensive powers given the national 
executive by the Constitution was due to the expectation 
that Washington would be the first President, and popular 
confidence in him made the national and state conventions 
less unwilling to grant these powers. Yet it must be 
admitted that our early executives exercised control less 
through their constitutional powers than through their 
personal influence. 

338. The Execution of Law. — The oath which the Presi- 
dent takes upon entering office lays upon him the duty of 
seeing that the laws are faithfully executed. This may be 
done in one of two ways : by the regular machinery of the 
executive department, or by the use of arms, i.e. coercion. 
As the laws generally operate upon individuals, it is seldom 
necessary to call upon the military forces unless the oppo- 
sition to the law is widespread and takes the form of dis- 
order and insurrection. At such times the execution of 
the law has never been long delayed, except in the case of 
the seceded states. 

Frequently the laws passed by Congress are general in 
their character, and in administering them it is necessary 
for the President or his assistants to arrange the details. 
They are thus permitted to use their discretion in the 
methods chosen and the officials through whom the law is 
administered. These details are regulated by ordinances 
which give the executive much greater power than he would 
otherwise have, though they are much less common in this 
country than in England and France. 

339. Military Powers. — By the Constitution the Presi- 
dent is made commander-in-chief of the army and the 
navy, and of the militia when in active service of the 
United States. In ordinary times these powers are of com- 
parative insignificance; but in great crises their use makes 
the President a dictator. This was plainly the case with 
Lincoln during the War of Secession. According to Bryce, 
"Abraham Lincoln wielded more authority than any single 
Englishman has done since Oliver Cromwell." It was by 



The President 



293 



virtue of his position as military commander that he sus- 
pended the privilege of the writ of habeas corpus, and that 
he issued the Emancipation Proclamation. 

As a President may enforce his proclamations by mili- 
tary power, they rather than the statutes become the law 
de facto. The extent to which this power might be abused 
by a strong-headed yet incompetent President can readily 
be seen; but in our country such an abuse is likely to be 
checked, without great difficulty, through public sentiment 
and action by Congress. 

340. Use of the Army in Internal Affairs. — The Presi- 
dent is also authorized to keep the peace of the United 
States and use the army when called upon by the state 
legislatures, or the governor when the legislature is not in 
session. This power has been used most frequently in 
connection with strikes covering a considerable area. 
When such a strike leads to rioting, which in turn inter- 
feres with interstate commerce or the United States mails, 
there can be no question that the President may use the 
army with or without the application of the state executive. 
This was done in 1894, in spite of the protest of the 
governor most concerned. 

341. The Power of Appointment in History. _ The proper 
control of this power is a subject to which great consideration has 
been given in Anglo-Saxon countries for the last two centuries. The 
extent to which patronage and bribery were used by Walpole, and 
afterward by George III, in order to maintain a majority in Parlia- 
ment, is well known. During the Revolutionary War and the years 
immediately following, both England and America sought a solution 
of the problem : the one by giving the legislature more power over 
the executive; the other by placing the power of appointment in the 
hands of the legislature. In the Convention of 1787 it was at first 
proposed to leave all appointments to the Senate. Later, the Presi- 
dent was given the right to choose persons for all important places 
with ratification by the Senate, and the others could be vested by 
Congress in whomever it pleased. But no member of Congress was to 
hold any civil office under the United States or to be appointed to one 
which had been created or of which the salary had been increased 
during the term. 



Instances of 
its use. 

Harrison, 
118-125. 

Cf. Story, 
Commenta- 
ries, \\ 1209- 
1215. 



Patronage in 
the eigh- 
teenth cen- 
tury. 

Eaton, D. B., 
in Lalor, III, 
139-145. 



294 



The American Federal State 



Number and 
importance 
of appointive 
positions. 

Hinsdale, 
§§ 491-496. 

Bryce, 44-48. 

Harrison, 
ibid., 100- 
104, 107-II2. 



Defects of 
the present 
methods. 

Eaton, in 
Lalor, I, 
580-582. 



342. Appointment at Present. — As there are nearly two 
hundred thousand positions besides those of the army and 
navy to which persons must be appointed, the vastness of 
this power is evident, especially as it is the custom for a 
new President to replace incumbents with his own friends 
or politicians to whom he or the party leaders are indebted, 
even when his predecessor was of the same political faith. 
It would of course be absurd for the President to try to fill 
all of those personally, and most of the minor appointments 
have been left with officials belonging to different depart- 
ments. Nevertheless, the President possesses the great 
nominal power of appointing to all important places, num- 
bering five thousand. These include the members of the 
Cabinet and their immediate subordinates, the federal 
judges, ambassadors, ministers and consuls and the highest 
class of postmasters. All of these appointments must be 
confirmed by the Senate, and this makes a great deal of 
difference with the practical working of the system. The 
Senate now seldom refuses to confirm those whose duties 
bring them into close relations with the President, e.g. 
heads of departments; but in the appointment to positions 
throughout the country, the President seldom refuses to 
appoint those favored by the senator from that state. This 
system of "senatorial courtesy" has been in use more or 
less since the government was first organized, but has been 
developed because rotation in office became the rule when 
the presidency became democratic, and because of the 
executive subordination to Congress which grew out of 
reconstruction disputes. 

343. Observations on the Power of Appointment. — This 
duty of appointment is one of the greatest burdens of the 
presidency, even if one of the greatest sources of influence. 
To be sure, it enables the incumbent to pay political debts, 
and secure aid during elections, which could not be obtained 
without the promise of a reward. But most of the offices 
must be given to the friends or assistants of others, espe- 
cially the senators. For this reason few of the appointees 



The President 



295 



represent his own personal preference; the great majority 
are selected for him, or are picked from candidates named 
by political leaders, to whom he is practically restricted. 
With responsibility so scattered, there is no one who can 
be blamed or praised as the case demands. The President 
is bound hand and foot nine times out of ten, and the only 
wonder is that the vicious system has done so little damage 
as it has. 

344. Removals. — It is now admitted in law and in prac- 
tice that the President has the right to remove any official 
he may appoint. But interesting conflicts have occurred 
over this very power. The Constitution neglects to state in 
whom the right of removal is vested, and during the first 
year of Washington's administration there were various 
opinions regarding it. In 1789 a resolution was passed by 
Congress which declared that it belonged to the President 
alone. This practice was changed by the famous Tenure 
of Office Act that was passed by the reconstruction Con- 
gress (1867), and for twenty years removals required the 
indorsement of the Senate. In time this became so objec- 
tionable that the law of 1867 was repealed in 1886, so that 
since that time the President's power of removal has been 
plenary. The successor is at once appointed, and may 
hold office without confirmation till the close of the next 
meeting of Congress. 

345. The Civil Service. — As almost all of the persons 
connected with the United States government belong to 
the administrative service, it is absolutely necessary, if 
good results are to be obtained, that the ones appointed 
should be competent, and that their tenure should be 
secure. Our custom, most of the time under the Consti- 
tution, has been in violation of these unquestioned princi- 
ples. The beginnings of the spoils system are usually 
traced to the Crawford Act of 1820, which made the tenure 
in the treasury department four years. With the develop- 
ment of ultra-democratic ideas later, every branch was 
invaded, and not even a four-year term guaranteed. An 



Practice 
since 1789. 

Cf. Federal- 
ist, No. 77, 

Hinsdale, 
hk 497-502- 

Eaton, in 
Lalor, III, 
565-569- 

Cleveland, 
in At. Mo., 
LXXXV 
(1900), 726- 
732. 



The spoils 
system and 
competitive 
examina- 
tions. 

Eaton, in 
Lalor, I, 
478-485. 

Lodge, Hist, 
and Pol. 
Essays, 114- 
137- 



296 



The American Federal State 



Executive 
and legisla- 
ture never 
entirely 
separate. 

Johnston, in 
Lalor, III, 
1064-1067. 



Character of 
the annual 
message. 



attempt at reform was made in the early seventies under 
Grant, but failed. In 1883 the Pendleton bill was passed, 
a civil service commission was created, and competitive 
examinations were required for certain positions, whose 
number may be increased or diminished by executive order. 
Since that time progress has been steady, till, in 1897, 
nearly one-half of all government positions were filled in 
this way, 87,000 out of a total of 180,000. In 1899 Presi- 
dent McKinley issued an order taking nearly 10,000 posi- 
tions from the classified service, where it was thought that 
the civil service law was unsatisfactory. While the laws 
may have been far from perfect, and the system is as yet 
crude, it marks a vast advance over that in use before; and 
it will in time be improved, as needs make themselves 
felt. If certain other positions, especially those con- 
nected with the diplomatic and consular service, could 
be added, the gain would be much greater. The friends 
of reform, however, feel grateful that every attempt of 
Congress to return to the old system has been baffled by 
public opinion. 

346. Legislative Powers ; Historical. — That the complete 
separation of the three great departments is theoretical 
rather than practical, is shown by the fact that even in 
1787 no attempt was made to leave the executive without 
legislative duties. We have already seen the great part 
played by the King in the business of legislation, and we 
find a survival of these executive powers in those assigned 
the President. The Crown's initiative in legislation appears 
in the President's message, while the Crown as a third 
house has been changed into a modified veto upon all 
legislation. A century's development has shown the wis- 
dom of these constitutional provisions, and has led to other 
relations between the two departments not contemplated by 
the constitutional Convention. This important subject will 
be considered in another chapter (XVII). 

347. The Message. — The President's annual message is 
always sent to Congress the first week of each session. It 



The President 297 

is usually little more than a summary of the work of each 
of the executive departments, with some suggestions on 
that work. Occasionally a large part of the message is 
taken up with the formation and statement of some policy; 
but this is not common, as the message nowadays exerts 
but little influence on the course of legislation. A notable 
exception was the tariff message of Cleveland, in 1887. 
When the Presidents were in closer touch with Congress, 
the message had an importance that it now lacks, and the 
houses often spent considerable time in "Committee of 
the Whole on the State of the Union" considering the 
policy of the President. 

Special messages are often sent. If these relate to some Special mes- 
subject of great popular interest, their influence upon leg- ^^S^s. 
islation is marked and immediate, e.g. when McKinley 
asked for money to render the army and the navy more 
efficient, in the spring of 1898, before war had been de- 
clared, both houses passed the bill by almost unanimous 
votes, and the House within a space of two hours. But 
even with special messages, it is the pressure of public 
opinion, rather than the power of the President, that leads 
to favorable action. 

348. The Veto. — During the early part of the century importance 
the veto was seldom used, and when employed was effec- ° ^^'°' 
five, as but one bill was passed over it before the adminis- Bryce, 41-44, 
tration of Johnson. Since then it has been employed more 
often, but usually upon bills of minor importance. That ^^"^*^' 
it gives the President a real power must be evident if we 134.' 
consider that legislative bodies seldom possess a two-thirds coojey 
majority in favor of any measure likely to be disapproved Cofist'iLaw, 
by the executive, and that this disapproval will probably ^^^^^9- 
influence the action of some of the members. The "pocket "^ 
veto " really gives the President undue power, owing to the 
unfortunate custom of passing many bills during the last 
three or four days of each session ; but as most of these are 
ill-considered, their failure is less of an injury to the 
country than their success would have been. 



298 



The American Federal State 



Veto and 
appropria- 
tion bills. 

Johnston, in 
Lalor, III, 
642-645. 



Treaties and 
statutes. 

The making 
of treaties. 

Hinsdale, 
kh 485-490. 

Story, Com- 
mentaries, 
§§ 1504-1523. 

Harrison, 
134-141, 

Cooley, 
Const' I Law, 
30, 106. 

Boutwell, 
Const, at End 
of Century, 
293-296. 



Changes that 
may be nec- 
essary. 



The President does not possess the right conferred upon 
some state governors of selecting particular provisions of 
appropriation bills which he may disapprove and, there- 
fore, wish to veto. As the appropriation is absolutely 
necessary. Congress has often found occasion to attach 
other bills, called "riders," to the appropriation bills in 
order to keep one house or the President from preventing 
their passage. 

349. Treaties. — While the making of treaties is diplo- 
matic, and not legislative, it ranks as but little less impor- 
tant than the power to make laws. With the Constitution 
and the United States statutes, the treaties constitute a part 
of the supreme law of the land; a treaty legally supersed- 
ing a previously existing statute with which it is in conflict, 
although it in turn may be abrogated by a later law and 
may, in fact, be practically nullified by the failure of Con- 
gress to make appropriations or pass laws necessary to carry 
it out. The part played by Congress in the making of 
treaties is undoubtedly responsible for this somewhat 
anomalous condition. While the treaty must be ratified 
by two-thirds of the Senate, the character of the work of 
negotiation requires that it shall be done as secretly as 
possible, and through the proper executive department. 
But as a good treaty that will be rejected is less valuable 
than one with more imperfections, but acceptable to the 
Senate, the members of the Committee of Foreign Affairs 
are usually consulted before the negotiations are closed. 
Even then it may be impossible to obtain the consent of 
the necessary two-thirds. 

Were we surrounded by powerful neighbors, our foreign 
relations would be vastly more complicated than they are, 
and our present methods would present grave dangers in 
two ways. First, we should find that our cumbersome 
method of making a treaty would have to be replaced by 
one simpler, but more effective, withal less democratic. 
Second, we could hardly avoid international complications 
due to the fact that the administration of many matters 



The President 299 

with which our treaties deal has been left to the state 
governments. 

350. Other Foreign Affairs. — Closely connected with the Acquisition 
treaty-making power are two others of great practical ofte''"tory. 
importance. One of these grows directly out of the power Johnston, in 
to make treaties — it is the one that deals with the acqui- go_gg' ' 
sition of territory. As we have seen (§§ 156, 157), the 
Louisiana difficulty was solved in that way, and since that 

time there has been little or no question that the President 
possesses the initiative in extending our limits. When we 
consider how our history might have been different with 
the Mississippi as our western boundary, and how it is 
likely to be changed through the control of our new colo- 
nies, we certainly cannot doubt that the executive possesses 
a very great power. 

The second of these powers comes from the President's Recognition 

right to receive and dismiss the representatives of other o^ foreign 

° ^ governments, 

nations, and deals with the recognition of a foreign govern- 
ment when two parties each claim to possess control of it, 
or when the independence of some colony that has thrown 
off the provincial yoke is involved. Notwithstanding the 
claim that Congress could settle all such questions by its 
independent action, an unbroken line of precedents leaves 
the decision entirely with the President. 

351. Judicial Power. — The King's position as the foun- Reprieves 
tain of justice survives in the power of pardoning and ^'^^ pardons, 
reprieving. This extends to all offences except that of Harrison, 
impeachment. An effort was made immediately after the jg"^'*^" 
War of Secession to make an exception of treason as well, 

but it was unsuccessful. In time of peace this power does 
not possess the significance that attaches to the pardon of 
the state governors, because of the difference in conditions. 
The number of offences against national law are compara- 
tively few, and the chance that the President will seek to 
make political capital by a free exercise of the right to 
pardon is much less to be feared. 



300 The American Federal State 

QUESTIONS AND REFERENCES 
Election (§§ 326-336) 

a. Tables showing votes in presidential elections are given in John- 
ston, American Politics, Appendix; in some Political Almanacs; in 
Stanwood's History of the Presidency, under each campaign; and by 
Johnston, in Lalor, II, 53-60 (to 1880). 

b. On the election of 1876, consult Johnston, in Lalor, II, 50-53; 
Stanwood, History of the Presidency, 356-393; Cox, Three Decades 
of Federal Legislation, 65 1-668. 

1. What advantage would be derived from making the heads of the 
departments more independent of the President ? what disadvantage 
would there be ? 

2. Summarize the benefits of a four-year term; one of six years. 
If we had civil service reform for almost all of the positions in the 
executive department, would reelection be less objectionable ? 

3. Was the first method of electing the President better in anyway 
than that now in use ? Do we need a change in the present method ? 
How? 

4. Show whether fraud and intimidation would have more influence 
over the result if there were election by popular vote or by states. 

i. During the last presidential campaign, what candidates were 
before the conventions ? How many ballots were cast at each ? Was 
there any dispute over any plank of the platform ? If so, what one ? 
What was the vote on it ? Compare the last nomination with those 
since 1876. (Some Pol. Als. for votes on candidates.) 

ii. How many members of the " electoral college " are there? How 
many are necessary to a choice ? Study the electoral and popular 
votes in recent elections. Have we had any minority Presidents 
since the Civil War ? If so, when ? How many electors has your 
state ? How have they voted in recent elections ? 

iii. Who were the delegates-at-large from your state and the dele- 
gates from your district to the last Republican and Democratic con- 
ventions ? Who were the electors in your state ? Did the convention 
or the college get the better and the more prominent men ? Can you 
account for this state of things ? 

iv. What Presidents have been chosen west of the Mississippi ? 
What states have had the greatest number ? Do you notice any ten- 
dency to select Presidents from particular sections during special 
periods? Can you give any reasons for this ? 



The President 301 



Executive and Administrative Powers (§§ 337-345) 

a. Compare the executive in England, France, Germany, and the 
United States. Wilson, The State, §§ 415-418 (Fr.), 498, 530-542 
(Ger.); Burgess, Comparative Constitutional Law, W, 185-215 (Eng)., 
216-263 CU. S.), 264-287 (Ger.), 288-306 (Fr.), 306-319 (comparison 
of all). 

1. Is it wise to have great civil and military pow^er centred in a 
single individual ? Have our war Presidents been elected on military 
records ? Would it have been more satisfactory to have had them 
exercise no war powers ? Have our generals made better Presidents 
than the average non-military President ? 

2. What objections may be urged against the use of the United 
States army in internal affairs ? Are they well grounded ? 

3. Can you suggest any way of securing greater responsibility for 
the appointments under the executive department ? 

4. Of what does civil service reform consist ? What are the dan- 
gers of too permanent tenure ? Are examinations a satisfactory test 
of fitness ? 

i. Name a recent instance of the use of military force by the United 
States in suppressing riot. What reason was there for national inter- 
ference ? Were there any protests from any quarter ? 

ii. Consider to what extent the President considered his own wishes 
in these appointments: the Secretary of War; the governor of New 
Mexico ; the ambassador to France ; the consul at Hamburg ; the 
postmaster of your own town ; the United States marshal of your dis- 
trict; the collector of the nearest port. 

iii. What persons connected with the postal service are appointed 
under competitive examinations ? 

Legislative Power (§§ 346-351) 

1. Does the veto give the President too much power over Congress ? 
Has it been abused ? Select instances where it has been productive 
of good results. 

2. Should the President be granted exclusive power to make 
treaties ? What check is there upon executive action regarding the 
acquisition of foreign territory and the recognition of foreign gov- 
ernments ? 

3. Would it be desirable to discontinue the President's message or 
any feature of it ? Should it be obligatory upon Congress to consider, 
under the form of a bill, suggestions of the President ? 



302 The American Federal State 

i. What were some of the bills vetoed by Johnson ? What was the 
character of most of those vetoed by Cleveland ? What was the occa- 
sion of the last veto ? Its effect ? 

ii. Look up the last presidential message. Is it full of " glittering 
generalities " ? What portion of it is devoted to foreign affairs ? 
finance ? colonies ? What policy is suggested ? (American monthly 
R, of K. for last January, etc.) 

iii. What important treaties were ratified by the last Senate? 
Where, and by whom, were they made ? 



CHAPTER XV 

THE EXECUTIVE DEPARTMENTS 
General References 

Willoughby, Rights and Duties of American Citizenship, 215-241. 
Excellent. 

Clark, Outlines of Civics, 61-71. Brief, but detailed. 

Congressional Directory. The best summary of the work of each 
bureau and division. 

Dawes, How We are Governed. 

Harrison, This Country of Ours. By far the best general description 
and popular account. 

Lamphere, The United States Government. 

Elmes, Executive Departments. Quite full, but not recent. 

Guggenheimer, Development of the Executive Departments (under the 
Confederation) ; in Jameson, Essays in the Constitutional His- 
tory of the United States. 

Lalor's Cyclopedia, under the different departments. 

352. Introduction. — While the power of our national The heads oi 
executive belongs almost exclusively to the President, the departments 

. . . . • 1 1 . as a Cabmet. 

administration of its business rests with the executive 

departments. At present there are nine of these, the de- ^'^^^' °~7°- 

partments of State, the Treasury, War, Navy, Post-ofifice, Harrison. 

Interior, Justice, Agriculture, and Labor. At the head of of Ours, 

each department is a secretary, appointed by the President 104-107. 

and personally responsible to him. While the heads of the Wilson, 

departments (except that of Labor), collectively, form the ^°^s- Gov't, 

257—266, 260. 

Cabinet, they influence the action of the President more as 
the heads of departments than as members of the Cabinet. 
The Cabinet as such has no policy of its own, and even if 
it had one the President would be in no way bound to 
follow it; but he is quite likely to leave the administration 

303 



304 



The American Federal State 



Clerical and 

diplomatic 

duties. 

Harrison, 
187-193. 

Schuyler, 
Amer. Diplo- 
macy, chap. 
I., esp. pp. 
6-14. 



of the affairs in the departments to their respective chiefs. 
These officials are usually aided by quite a number of assist- 
ants and by many heads of bureaus and divisions, in whom 
is often vested considerable power of appointment and 
some discretion as to management. 

353. Duties of the Secretary of State. — Because the 
department of State attends to all affairs concerning our 
relations with other countries, it is placed first in the list of 
departments. Its principal duties are of two kinds : first, 
those of a clerical nature, such as the enrolment of the 
laws, the care of the archives, and the keeping of the Great 
Seal. Second, those that deal with foreign nations. The 
latter may be subdivided into those that are really diplo- 
matic and those that affect the consular service. The 
diplomatic duties are the most important as they have the 
greatest bearing upon affairs of state. As the secretary is 
usually a man skilled in international law, and is assisted 
by men who are experts, the negotiation of treaties, under 
certain limitations laid down by the President, is ordi- 
narily left in his hands. In this foreign intercourse it 
would be awkward for our secretary to communicate directly 
with the foreign secretary of the nation interested, so nego- 
tiations are conducted at the capital of one country, the 
other being represented by its ambassador or by envoys 
appointed for the occasion. In cases of peace treaties 
after hostilities have ceased, some neutral capital is selected 
and special commissioners are employed. 



For a list of the bureaus and divisions into which the departments 
are divided, and for a summary of the duties assigned to each secre- 
tary, assistant, commissioner of bureaus or heads of divisions, the stu- 
dent is referred to the Congressional Directory. As these books are 
easily obtained, no details of that character need be given in this 
chapter. 



Classes of 
diplomatic 
representa- 
tives. 



354. The Diplomatic Service. — Our business of a diplo- 
matic nature is intrusted to ministers and assistants at the 
capitals of all important foreign countries. Our ministers 



The Executive Depmiments 



305 



to the great nations are called ambassadors, to other nations 
ministers plenipotentiary or ministers ordinary. We may 
be represented merely by a charge d'affaires, a secretary of 
a legation, or may conduct our business through the min- 
ister of some other power. These ofificials are party men, 
whose tenure is therefore insecure. They are chosen not 
necessarily on account of their fitness for these positions, 
but for many other reasons. Neither they nor their chief 
assistants are trained for their work; but in spite of this 
defect our diplomatic service compares very favorably with 
that of most other countries. 

355. Consuls. — The work of our consular service is 
almost purely of a business nature. The consuls are agents 
living in all the important cities of the globe. Their duties 
are many. They attend to the business of our government 
at that place, keep us posted as to the business conducted 
there, especially the character of its exports, and look after 
American merchants, seamen, or tourists who may need 
assistance of any kind. Among certain semi-barbarous 
peoples, cases affecting Americans are brought up for trial 
before the consul rather than in the courts of the country. 
It has been our custom to change consuls with a change of 
administrations at Washington, although certain posts where 
the remuneration is small have been left in the hands of 
resident merchants. This custom has been most unfortu- 
nate. The best of men cannot do satisfactory work for the 
first year or two in a position where the language and the 
conditions are entirely unknown ; and where a consulship 
is given solely as a reward for party service, and the tenure 
is brief, the result cannot be in doubt. 

356. Reform of the System. — That our diplomatic and 
consular service has not been more of a failure has been 
due undoubtedly to the great adaptability of the American 
temperament. But because of that very characteristic, our 
system should have been the best in existence; and it can 
be made so. The prime necessity is a corp of competent 
and trained men, fully equipped for the special work 



Woolsey, 
International 
Law, § 98. 

Harrison, 
194-196, 

Curtis, U. S. 
and Foreign 
Powers, 
chap. I. 



Consular 
duties. 

Woolsey, 
hh 99. 100. 

Curtis, chap. 
I. 

Schuyler, 
Amer. Di- 
plomacy, II. 



Changes 

needed. 

Parker, G. P., 
in At. Mo., 
LXXXV 
(1900), 669- 
683. 



3o6 The American Federal State 

assigned them and held to their best efforts by reasonable 
permanence of tenure and promotion on merit. The first 
step has been taken by applying certain rules, with some of 
these objects in view, to the lowest classes of consuls, but 
the whole consular service and the diplomatic assistants 
should be included. It may well be questioned whether 
it would be advisable to make technical requirements of 
the ambassadors to the leading powers. The high charac- 
ter of the ofificials appointed to those positions in recent 
years does honor to our country, and in all probability we 
should have been denied their services if routine training 
had been a prerequisite. 

As the consuls are business agents, the work they do is more closely 
connected with that of the Treasury department than with the rest of 
the department of State. It seems probable that if a department of 
Commerce is created according to suggestions made in Congress re- 
cently, the consular service will be entirely remodelled, and placed 
under the control of the new Secretary of Commerce. 

Purpose. 357. The Post-office; History and Purpose. — The post- 

office is the only important example of a business actually 
conducted by the national government. The object is not 
to make money, but to give the people the best service 
possible at practically cost. The department has, in fact, 
been run at a loss for many years. 
History. The postal system was under the control of the govern- 

Harrison ment even in colonial times, but the rates were exorbitant 
233-240. and methods in use were very different from those of the 

present. Letters were often the only things carried, stamps 
were not used, and postage was not paid in advance. After 
Sir Rowland Hill had demonstrated in England the advan- 
tages of stamps and a reasonable rate, not dependent oh 
the distance, we adopted, in 1847, a modification of this 
plan. Rates have been lowered as rapidly as possible and 
routes extended to all parts of the country. Free delivery 
has been given to cities and many towns, while experiments 
have been made with it in rural districts. 



The Executive Departments 



307 



358. Organization and Work of the Post-office. — Post- 
offices are divided into four classes, according to the 
amount of business transacted. Postmasters are appointed 
by the President for the first three classes, but they number 
only four thousand. The other seventy thousand are ap- 
pointed by the Postmaster-general. None of these officials 
are subject to the civil service rules, but all mail clerks 
and carriers are obliged to pass examinations. 

Mail matter belongs to one of four classes. The first in- 
cludes letters; the second, periodicals; the third, books; 
and the fourth, merchandise. In addition, the depart- 
ment issues money orders payable at any post-office or at 
certain points abroad. For the carrying of the mail, con- 
tracts are made by the Postmaster-general with steamship 
and railway lines, and with individuals. 

359. Defects of the Postal System. — It cannot be said 
that our post-office is, in all respects, a well-conducted 
business. Even though there is no desire on the part of 
the government to make profit out of the department, there 
does not seem sufficient reason for many unfortunate cus- 
toms. The selection of postmasters without special regard 
to preparation for their duties, and the frequent changes 
necessary, are in themselves costly. The expenditures for 
the transportation and delivery of second-class mail matter 
is several times as much as the revenue obtained from this 
source, this enormous loss being justified on the ground 
that the literature thus carried is a means of educating the 
people. Another practice liable to abuse arises from the 
privilege given congressmen and others of sending out gov- 
ernment publications free of postal charges. Another seri- 
ous defect is caused by the frequent payment to different 
organizations of sums larger than those required by express 
companies for similar services. 

360. The Secretary of the Interior. — The duties of the 
Secretary of the Interior are of the most varied character. 
His department is broken up into bureaus that have duties 
in no way related to each other, but of the greatest impor- 



Fout classes 
of post- 
ofifices. 



Four classes 
of mail mat- 
ter. 



Defects in 
organization 
and methods. 

Harrison, 
242-250. 

Loud, E. P., 
in A'. A. /?., 
166 (1898), 
342-349. 



Many impor- 
tant duties. 

Harrison, 
268-270. 



3o8 



The American Federal State 



Educational 
grants and 
homestead 
acts. 

Harrison, 
269-279. 

Willoughby, 

Citizenship, 

225-229. 



Liberal pen- 
sion policy. 

Harrison, 
285-286. 

Casselman, 
A. B., in Cen- 
tury, XXIV 

(1893). 135- 
140. 



tance in themselves. They deal with public land, pen- 
sions, Indian affairs, patents, education, railways, the 
census, and other domestic affairs. As ex-President Har- 
rison says, " The Secretary must pass finally in the depart- 
ment upon questions of patent law, pension law, land law, 
mining law, the construction of Indian treaties, and many 
other questions calling for legal knowledge, if the judg- 
ment of the Secretary is to be of any value." He has been 
called upon to decide questions involving millions of dol- 
lars, and to assist him in this legal work has a special 
assistant attorney-general. 

361. Our Land Policy. — The public lands of the United 
States were intended at first to be a profitable investment. 
Extensive surveys were made, the land being laid out in 
townships six miles square, composed of thirty-six sections. 
Sales were made except of the sections reserved for schools 
or other purposes. These school lands comprised one sec- 
tion of each township before 1848, after which two were 
given; and during the sixties general grants of other lands 
for the aid of state agricultural schools were made. Since 
1862 lands have been acquired by settlers under the Home- 
stead Act. This enables any citizen, or person who intends 
to become a citizen, to buy a quarter-section at half price 
by making his home on it for two and one-half years, or to 
acquire title at a nominal figure by living on it five years. 
Especially favorable terms are given veterans. Under the 
act large portions of the West have been settled by immi- 
grants from the Eastern states and from Europe. 

362. Pensions. — While this bureau does nothing more 
than apply the laws of Congress, the subject itself deserves 
some notice. It is only during recent years that our pen- 
sion list has grown very large, the policy for twenty-five 
years after the War of Secession being to grant pensions to 
those alone who were injured in actual service. The law 
of 1890 makes it practically possible for any one who was 
in the Union army, for even a brief period during the war, 
to secure a pension, provided he is now disabled. There 



The Executive Departments 



309 



can be no doubt of the duty which our government owes 
to those whose sacrifices brought great suffering upon them- 
selves or their relatives; but the wisdom of our present lib- 
eral legislation has been seriously questioned by some men 
whose patriotism is above reproach. 

363. Indian Affairs. — The care and development of the 
Indian is one of the duties we owe civilization. Our own 
growth demanded that we should occupy the lands that were 
his, but the act of dispossession laid upon us a duty to pro- 
tect and educate him. At first it was our custom to make 
with the tribes treaties that were systematically broken. 
Since 187 1 the treaty system has been abandoned, the 
Indians have been treated as wards of the nation, more 
careful attention has been given to Indian affairs, and the 
whole subject has been intrusted to a commission made up 
of first-class men. The problems of education and civiliza- 
tion have been dealt with in an honest spirit, and an attempt 
is being made to solve them by making the Indian a citizen, 
giving him land of his own, and training him to some 
suitable line of work. 

364. Patent Office. — The great material progress we have 
made during this century is no doubt partially due to the 
patent rights given by the government. Any person may 
obtain for the period of seventeen years the exclusive right 
to make articles similar to his invention, provided the 
device is not already protected by patent. When applying 
for a patent a person sends a model of the articles upon 
which the patent is desired, accompanied by the necessary 
fee. Careful search is made among the multitude of models 
in the patent office, and if no proof is found that the article 
has been patented or has been in common use before, letters 
patent are issued, granting a monopoly for the manufacture 
of the goods. 

Copyrights were formerly issued by the department of 
the interior, but are now given by the librarian of Con- 
gress. Sole right to publication is given for twenty-eight 
years, with liberty of extension for fourteen years longer. 



Policy before 
and since 
1871. 

Harrison, 
280-284. 



Process in 
obtaining a 
patent. 

Spofford, 
A. R., in 
Lalor, III, 
122, 123. 



Process in 
obtaining a 
copyright. 



310 



The American Federal State 



Putnam, 
Question of 
Copyright 
(2d ed.), 
1-32. 



Spofford, in 
I^Ior, II, 40, 
41 (educa- 
tion). 



Bureaus of 
the Treasury 
department. 
Harrison, 
202-220. 

Adams, 
Science of 
Finance, 
194-201. 

Congres- 
sional Direc- 
tory, under 
Treasury 
department. 

(For influ- 
ence of de- 
partment, 
see §§ 146- 
149.396,598- 
603.) 



An effort has been made to secure what is known as " inter- 
national copyright," to protect our writers from cheap and 
unscrupulous publishers abroad and render the same ser- 
vice to foreign writers here, but it has been only partially 
successful. 

365. Other Bureaus of the Interior Department. — As all 
matters pertaining to education are left with the states, the 
Commissioner of Education confines his labors to the gath- 
ering of statistical information, the making of reports and 
suggestions. His principal aim is to bring about uni- 
formity of the highest grade in the schools of the land. 
The Commissioner of Railroads looks after all the interests 
of the government connected with railways, especially those 
called the Pacific railways. The Census bureau performs 
work of the highest value, not only in the decennial enu- 
meration of the people, but in the collection of statistics 
regarding age, sex, and nativity of the population, taxation, 
wealth, public indebtedness, agriculture, manufactures, 
occupations, etc. For a short period the number of 
employees runs up to many tens of thousands, the chief 
positions being usually occupied by experts. 

366. The Treasury Department. — No one of the depart- 
ments has exerted a more potent influence upon our history 
than the Treasury. The means by which it affects the polit- 
ical and business world are indicated in the chapter on 
Money, so an outline will suffice here. The Secretary of 
the Treasury is instructed to make plans for the manage- 
ment of the revenue, to look after its collection, and super- 
vise all fiscal operations of the government. He is assisted 
by three Assistant Secretaries; several Auditors for the dif- 
ferent executive departments; the Treasurer, who has charge 
of the receipt and disbursement of money; a Controller 
of the Treasury, who supervises all accounts that are in 
dispute; a Controller of the Currency, who oversees all 
national banks (§ 602) ; the Director of the Mint, who has 
charge of all coinage (§ 604) ; the Superintendent of the 
Bureau of Engraving and Printing; the Commissioner of 



The Executive Departments 



311 



Internal Revenue, who oversees the collection of revenue 
from that source (§§ 581-585); besides several others, some 
of whom have nothing whatever to do with finance, as the 
Superintendent of the Coast and Geodetic Survey. Among 
the officials of the Treasury department is the Commis- 
sioner-general of Immigration, who supervises the admin- 
istration of all regulations relative to immigrants. The 
laws at present in force exclude all Chinese laborers, idiots, 
paupers, criminals, and persons under contract to work in 
competition with American labor. 

367. The War Department. — Although not often an army 
officer, the Secretary of War is the real commander of the 
army, supervising its organization, equipment, and move- 
ments. His action is, of course, subject to the approval of 
the President as commander-in-chief, but he ranks above 
the general of the army. In times of peace he is a person 
of little power, and in case of war it has been the custom 
to leave the direction of the armies to the commanding 
general. He is assisted by the Quartermaster-general in 
buying most of the army supplies, except the food, which 
is under the charge of the Commissary-general, and the 
ordnance, which is left to the Chief of Ordnance. The 
two principal cares of the department are the army and 
the coast defence, for both of which appropriations have 
been largely increased during the last five years. The 
training of officers for the army is conducted at West 
Point Military Academy, the appointment of cadets be- 
ing, in practice, made by the different senators and repre- 
sentatives. 

368. The Navy Department. — During the last twenty 
years interest has greatly revived in naval affairs. The 
lessons of the late war with Spain show to all thoughtful 
persons the supreme necessity for a country situated as ours 
is of a large and well-managed navy. At the present time 
the most important bureau is that of Construction and 
Repair, which has charge of all plans for the new vessels. 
The Secretary of the Navy bears practically the same rela- 



Regulations 

regarding 

immigration. 



The Secre- 
tary and his 
assistants. 

Harrison, 
221-230, 



Present im- 
portance of 
the depart- 
ment. 

Harrison, 
251-267. 



312 



The American Federal State 



The Attor- 
ney-general 
and his 
assistants. 

Harrison, 
230-232. 

Spofford, in 
Lalor, II, 
663, 664. 



Four chief 
duties. 

Harrison, 
289-291. 



Investiga- 
tion and 
reports. 

Harrison, 
293-295. 



Organization 
and work. 



tion to the President and to his subordinates as does the 
Secretary of War. 

369. The Department of Justice. — The United States has 
always had an Attorney-general to advise the President and 
members of the Cabinet, and to conduct suits in the higher 
courts; but it was not till 187 1 that the department of Jus- 
tice was organized. It consists of a Solicitor-general, four 
Assistant Attorney-generals, and several Attorneys, who re- 
lieve the Secretary of the great bulk of legal investigation 
and pleading. Had the Supreme Court been willing to 
advise Washington, when he asked their opinion on several 
questions of foreign and domestic policy (1793), the Attor- 
ney-general's duties would undoubtedly have been less im- 
portant. 

370. The Department of Agriculture. — The Secretary of 
Agriculture did not become a member of the Cabinet until 
1889, although the department was organized in 1862. His 
chief duties are four in number: (i) He supervises the 
inspection of all meats that are exported; (2) makes sci- 
entific experiments with different plants in order to learn 
which varieties give the best results; (3) sends seeds and 
information to farmers desiring them; and (4) prepares, 
through the weather bureau, reports of the probable con- 
dition of the weather in all parts of the country. While 
the wasteful distribution of seeds has caused considerable 
adverse criticism, the department has proved itself of the 
highest value to the whole community. 

371. The Department of Labor. — As the United States 
government leaves the control of industrial corporations to 
the states, the Commissioner of Labor is of necessity con- 
fined almost wholly to gathering statistics, making investi- 
gations, preparing reports, and offering suggestions. While 
the work of the department has proved of value, it has not 
led to tangible results by greatly affecting the legislation of 
the country. 

372. The Industrial Commission. — In a measure, this 
commission of nineteen members has a task similar to that 



The Executive Departments 



313 



given the Department of Labor, though in a less limited 
field. It was created in 1898 for the purpose of study- 
ing the condition of labor, manufacturing, and agriculture 
throughout the United States, and of reporting to Congress 
and suggesting to the state legislatures some laws that would 
tend to improve and make uniform the legislation relating 
to all forms of industry. Were the supervision of most 
corporations transferred from the state governments to that 
of the nation, a Department of Labor and Industry would 
be a prime necessity, and would rank second to few if any 
of the other executive departments. 

373. Other Commissions. — The Interstate Commerce 
Commission was created in accordance with the law of 
1887, and consists of five members. It holds sessions 
and hears complaints of persons who believe they have 
been compelled to pay excessive rates to companies 
operating in more than one state. The commission has 
authority to declare charges unjust, but has no power to 
fix rates. 

The three members of the Civil Service Commission 
make rules for holding examinations of persons wishing to 
enter the " classified " service of the United States, and 
select the ones to fill vacancies. 

The Commission of Fish and Fisheries seeks to increase 
the numbers of desirable fishes in different parts of the 
United States. 



North, in 
N. A. R., 168 
(1899), 708- 
719. 



Interstate 

Commerce 

Commission. 

Cf. § 613. 



Civil Service 
Commission. 
Harrison, 
296-298. 

Fish Com- 
mission. 



QUESTIONS AND REFERENCES 
The Department of State (§§ 352-356) 

a. Defects of our foreign service, Rockhill, W. W., in Forum, 
XXII (1898), 673-683; White, S. M., in Forum, XXV (1898), 
546-554; Washburn, A. H., in At Mo., LXXIV (1894), 241-252; 
Parker, G. F., in At. Mo., LXXXV (1900), 455-466. 

b. Reform of the service, some of above, and Wharton, W. F., 
in N. A. R., 159 (1894), 412-422; White, H., in N. A. i?., 159 
(1894), 711 et seq.; Parker, G. F., in At. Mo., LXXXV (1900), 
669-683. 



314 The American Federal State 

I. If a Department of Commerce were created, what would be some 
of the duties assigned to it, and what bureaus, divisions, etc., now be- 
longing to other departments should be incorporated with it ? 

i. When was each department created ? Who is now in charge of 
each? Give some account of the public services of the present secretaries. 

ii. Name the ambassadors of the United States to the chief powers, 
and of those powers to the United States. Which of these men have 
won distinction, and for what ? 

iii. What is the pay of our minister to France ? our consul at 
Liverpool ? How does their pay compare with that of similar officials 
representing other governments ? 

iv. What does it signify when a minister is given his passports ? 
When he demands them ? How would you get a passport if you 
wished to travel in Europe ? Of what value would it be ? 

The Post-office (§§ 357-359) 

1. Would a strict individualist (§ 27") believe it right for the gov- 
ernment to conduct a post-office ? Would you consider it desirable 
to leave the postal business to private corporations ? Should the post- 
office be run less for the purpose of " developing " the people and 
more in accordance with business methods ? 

2. If the post-office is conducted by the government, why should 
not the telegraph lines and railways be managed by it also ? Is there 
any essential difference between these kinds of businesses that make it 
more desirable in one case than in the others ? Give advantages and 
disadvantages of government control of the telegraph. 

i. How many Assistant Postmasters-general are there ? What is 
the work of the dead-letter office ? What two kinds of money orders 
are issued ? (Cong. Dir.) 

ii. What rates are charged for each class of mail matter ? What 
would it cost to send a one-ounce letter to Montreal ? to Berlin ? 
(Pol. Als.) 

iii. Under what class does each of the following come : a photo- 
graph ? a handkerchief? manuscript of a poem ? books in series pub- 
lished monthly ? hectograph circulars ? a package of seeds ? (Pol. 
Als.) 

The Interior Department (§§ 360-365) 

a. On our land policy, look up Ford, W. C, in Lalor, III, 460- 
479 ; Sato, S., in J. H. U. S, IV, vii-ix ; and Donaldson, Public Do- 
main, 146 et seq. 



The Executive Departments 315 

1. Study the history of the public lands devoted to education in the 
separate states. What ones have been especially wise in the adminis- 
tration of funds ? What ones particularly improvident ? 

2. State in detail w^hat is being done by the government for the ele- 
vation of the Indian. 

3. Give an account of the relations of the United States govern- 
ment to the Pacific railways from i860 to the present. 

i. Do you live on land surveyed according to the " rectangular " 
system ? If so, where are the nearest base line and prime meridian ? 
In what range and township do you reside ? In what section ? 

ii. What is the smallest monthly amount given to any veteran by 
the government in the form of a pension ? How many pensioners are 
on the list at present ? What sum is annually appropriated for them? 

iii. Look up the steps in obtaining a patent or a copyright. 

Other Departments (§§ 366-373) 

a. Compare our departments as departments and heads as a Cabi- 
net with those of Europe. Wilson, The State, §§ 419-430, 436-438 
(Fr.), 543-556 (Ger.), 858-889 (Eng.); and Goodnow, Comparative 
Administrative Law, I, 102-161 (on all). 

b. Complete lists of all cabinet officials may be found in Johnston's 
American Politics, Appendix; of all ministers abroad and consuls at 
present, in Congressional Directory. The World and some other al- 
manacs include lists of all or most of these personages. 

1. Is our method of appointment in the army and in the navy bet- 
ter than that employed in selecting men for other parts of the excepted 
or unclassified branches of the civil service ? If so, why ? If you think 
not, give your reasons. 

2. Which executive departments and commissions execute and ad- 
minister the laws ? Which ones are restricted to making reports and 
suggestions on subjects over which Congress has no jurisdiction ? 

i. WTiat Secretaries of the Treasury have had a national and lasting 
reputation ? (Pol. Als.) 

ii. Who has charge of the erection of public buildings? Of the con- 
struction of harbor improvements ? Of printing the records of Con- 
gress ? Of the samples of copyrighted books? (Cong. Dir.) 

iii. How does the weather bureau gain the information it needs in 
the formulation of its reports ? How are these reports made up ? 

iv. What classes of officials and clerks are in the classified list of 
the civil service ? the excepted list ? the unclassified list ? (Cong. 
Dir.) 



CHAPTER XVI 

THE JUDICIAL DEPARTMENT 

General References 

Hinsdale, American Government, 292-322. 
Bryce, American Commonwealth (abd. ed. ), 1 67-200. 
Harrison, This Country of Ours, 300-330. 
Burgess, Political Science, II, 320-337. 
Cooley, Principles of Constitutional Law, III-148. 
Story, Commentaries, chaps. IV, V, XXXVIII. 
Cooley et al.. Constitutional History as seen in Constitutional Law. 
"Willoughby, The Supreme Court. 

Coxe, Judicial Powers and Unconstitutional Legislation. 
The Federalist, Nos. LXXVIII-LXXXIII. 
Meigs, Growth of the Constitution, 234-254. 
Lalor's Cyclopedia, article, " Judiciary." 

British and American Encyclopedia of Law, article, " United States 
Courts." 



Final inter- 
preter of a 
written 
constitution 
in a federal 
state. 

Bryce, 260- 
262. 

Story, Com- 
mentaries, 
kk 373-396. 

Cooley, 
Const'l Hist., 
3»-43- 



374. The Position of the National Courts in our Consti- 
tutional System. — Our national judiciary has enjoyed an 
experience unique in the history of judicial institutions. 
This has been in no wise due to a peculiar organization or 
unusual methods, but solely to the character of the Federal 
State in which we live and to the limitations of a written 
constitution. In organizing our present system of govern- 
ment, a line was drawn between the sphere of the nation 
and the sphere of the states, and the powers to be exer- 
cised by the United States were delegated in general terms 
and enumerated in the Constitution. Because the exact 
character of these powers was not specified, it became a 
matter of the first importance to decide who should be the 
final interpreter of what powers had been given and what 

316 



The Judicial Department 317 

ones withheld. The convention of 1787 was unwilling to 
have the United States government dependent upon the 
states for the exercise of any of its powers, because of the 
experience which Congress had had under the Confedera- 
tion. Much less were they willing to give the states the 
right to decide what the provisions of the Constitution 
meant, as that would enable the states to restrict the powers 
of the central government at will, and thus place Congress 
again at their mercy. Accordingly, the convention felt it 
necessary to make the United States government the inter- 
preter of its own powers, and to the Supreme Court was 
given the right to decide what the Constitution meant. 
The anti-Federalists protested vigorously against such a 
usurpation of authority by the central government, as it 
left no sufficient guarantee that the states would be allowed 
to use all the powers reserved to them. These protests 
found embodiment in the tenth amendment, which declared 
that all powers not delegated to the United States or 
denied the states were reserved to the states or the people 
thereof. But this did not affect the position of the 
Supreme Court as the final interpreter of the Constitution. 

375. Declaring Laws Unconstitutional. — In The Federalist When and 

(No. LXXXI) Hamilton has shown that where a less impor- ^°^ ^'^f 
^ ' . ^ power IS 

tant law conflicts with a more important one, the former used, 
is set aside as invalid. As the Constitution is the funda- g ^ g_ 
mental law of the land, and as laws of Congress have less 181, 183-187, 
authority in case of supposed conflict, the courts must Hinsdale, 
decide whether the two are incompatible, and, if so, declare hh S70-S77- 
the law of Congress null and void. In the same way, since 
the Constitution, the laws of Congress and treaties are the 
supreme law of the land, when a state law is in opposi- 
tion to a national law, the court must first decide whether 
Congress had a right to pass its law, and if it had, the state 
law is declared unconstitutional. But the courts wield this 
immense power purely and simply as courts, i.e. they do 
not pass judgment on any laws at the time those are enacted, 
but wait till some one is aggrieved in the execution of the 



3i8 



The American Federal State 



Before 1790. 

Bundy, Sepa- 
ration of 
Gov't 
Powers, 
52-62. 



Since 1790. 

Johnston, in 
Lalor, II, 
647-652. 

Elliott, C. B., 
in P. S. Q., 
V (1890). 
224-258. 

Cf. §§ 145. 
168, 221, 404. 



law and brings suit in order to protect alleged rights. The 
courts do no more than decide whether the law does con- 
travene the Constitution, and if, in their opinion, it does, 
they bring in a verdict for the plaintiff. But as they have 
declared the law unconstitutional in this one case, it has 
become the custom for the other departments of govern- 
ment and for the people to consider the law of no effect, 
as though it had never existed. Then, if the decision of the 
court is unfavorable to the highest tribunal of the land, 
i.e. the people, in time the ruling of the court will be set 
aside and a law similar to the first one will be considered 
constitutional. 

376. Historical Use of the Power to set aside Laws. — In 
no other country has the judiciary ever been allowed to 
override the wishes of the legislative body by declaring a 
law null and void. Consequently, no other national courts 
can compare with ours in prestige or power. But the idea 
of setting aside a law did not originate with our Supreme 
Court. In colonial times we have the germ of the idea in 
the right exercised by the " Lords of Trade " to declare 
null and void a law of a colony which they thought was 
contrary either to the charter of the colony or to the laws 
of England. No less than three times between 1776 and 
1787 did the state courts assert their right to decide whether 
a law was in opposition to the state constitution; and in 
the well-known case of Trevett v. Weeden (1786) the Rhode 
Island judges not only declared a law unconstitutional, but 
sought, though unsuccessfully, to enforce their decision. 

The Supreme Court did not hesitate to exercise this 
power early in its career; but as most of the cases were of 
minor importance, comparatively little attention was paid 
to them, even though the strict constructionists were of one 
mind that the courts were exceeding their powers. The 
Virginia and Kentucky resolutions of 1798 and 1799, claim- 
ing the right of three-fourths of the states to declare a law 
of Congress unconstitutional, stirred up popular interest in 
the question, and made it necessary for the courts to prove 



The Judicial Department 319 

beyond all question that they had this right to set aside laws. 
In this consists the significance of Chief Justice Marshall's 
reasoning in Ma?-dury v. Madison (1803), (§ 145). From 
that time no large proportion of the people has denied to 
the Supreme Court the position of final interpreter of the 
Constitution. But it yet remained to assert the supremacy 
of national over state laws through judicial decisions, and 
this was done repeatedly between 18 10 and 1830. There 
have been, of course, objectors in the states and in the 
other national departments; but it is now universally ad- 
mitted that the Supreme Court decisions bind all other 
government officials and all citizens so far as they apply 
to civil rights and legal remedies, and not to political 
policies ; unless they are overruled by the people. 

377. Some Rules of Judicial Interpretation. — In deciding Cooiey, 

whether a law is adverse to the Constitution, the courts are Const' i Law, 

11 -11 151-162. 

accustomed to observe certain rules and customs. Among 

these may be mentioned: (i) No important case involving *^J' ^■^^' 
the Constitution is considered except by a full court. ^§ 399-456. 
(2) No law is declared unconstitutional unless it is clearly 
in opposition to the Constitution. (3) To find the mean- 
ing of a particular clause, the meaning of the Constitution 
as a whole is usually taken into consideration. (4) Laws 
which violate general principles of liberty are not on that 
account declared null and void. (5) Statutes may be held 
to be unconstitutional in part, the validity of the remainder 
being affirmed. 

378. The System of Courts. — The Constitution provides judiciary 
that there shall be a Supreme Court and such inferior courts ^^^^ °^ ^^89 
as Congress may think it best to establish. In the Judiciary ^ ' 
Act of 1789 arrangements were made for districts corre- j^'"^f^^*' 
spending to a state or a portion of a state, and circuits 538-546. 
composed of several districts. Judges were appointed for 

the Supreme Court and the district courts, but no special 
circuit judgeships were created. The jurisdiction of each 
set of courts was defined, and the cases that could be ap- 
pealed from the lower courts, or state courts, were enumer- 



320 



The Ameiican Federal State 



Life tenure. 

Hinsdale, 
k\ 530, 531- 



■ 3 o-i^ 



Classes of 
cases. 

Burgess, Pol. 
Science, II, 
325-328. 



ated. This system, with necessary changes, lasted for one 
hundred years, till the Act of 1891 created the Circuit Court 
of Appeals, in order to relieve the Supreme Court of a large 
part of the cases formerly appealed to it. We have now 
(1901), therefore, the lowest courts for seventy state and 
nine territorial districts; above these nine circuit courts 
and nine circuit courts of appeals, and, finally, the Supreme 
Court. The court of claims stands outside of this system, 
and the courts of the territories are organized on plans 
entirely different from the national courts. 

379. Term and Appointment of Judges. — The term of 
all United States judges is for good behavior. They are 
appointed by the President, and must be confirmed by the 
Senate before taking office. They hold, practically, life 
positions, as impeachment is the only method of removal, 
and this is too cumbersome for ordinary use. They may 
retire at the age of seventy, provided they have served at 
least ten years, and continue to draw full pay. The sala- 
ries at the present time are ^^5000 a year for district 
judges, ^6000 for circuit and appeal judges, and $10,000 
for Supreme Court justices, with $10,500 for the chief 
justice. These salaries may be increased, but cannot be 
diminished during the term of office. Life tenure of the 
judges violates one of the fundamental principles of de- 
mocracy, but it has undoubtedly given us courts of higher 
character than would otherwise have been possible. The 
judges have been men that have ranked high in the legal 
profession, and the permanency of tenure has led to fewer 
shiftings of position than would have been the case with 
short terms. Even when men who are pronounced poli- 
ticians have been selected for the bench, they have, almost 
without exception, subordinated partisanship to a love of 
justice. 

380. Jurisdiction of the Fational Courts. — The Constitu- 
tion provides for the different kinds of cases that may be 
tried in United States courts. These include all cases that 
could not be properly decided by state tribunals. They 



The Judicial Department 32 1 

may be arranged in two great classes : (i) Those depend- Cooiey, 
ingon the nature of the suit itself; (2) those depending on ^°"^j'^^^'^- 
the character of the parties to the suit. Under class one 
come "all cases in law and equity arising under this Con- 
stitution, the laws of the United States, and treaties made 
or which shall be made under their authority," and "all 
cases of admiralty or maritime jurisdiction." Under the 
second class are : (i) " all cases affecting ambassadors, other 
public ministers and consuls;" (2) "to controversies to 
which the United States shall be a party; [3] to contro- 
versies between two or more states, between a state and citi- 
zens of another state," but no state shall be sued without 
its own consent; (4) "between citizens of different states, 
between citizens of the same state claiming land under 
grants of different states; and [5] between a state or the 
citizens thereof and foreign states, citizens, or subjects." 

381. Methods and Jurisdiction; Historical. — The plan Aiinon-judi- 
proposed by Virginia to the constitutional convention '^'^^ ^^t\es 

.- o avoided by 

made the highest national court an advisory body for the the courts. 

executive; but, before the sessions closed, the courts were „ 

limited to judicial matters tried according to judicial This Country 

methods. Nevertheless, the judges were given several °f'^^^^> 

303~3i3' 
opportunities to perform many non-judicial duties. In 

1 791 the judges of the circuit court were asked to investi- 
gate and decide the claims of certain persons for pensions. 
All of the judges agreed that they had no judicial power to 
do this, and while some were willing to undertake the task 
as commissioners, so strong was the feeling of the judiciary 
against such a course that other provisions were made for 
the consideration of the claims. Not long after (1793) 
Washington sent to the Supreme Court a list of subjects 
upon which he asked the court to express opinions. They 
were at once returned as being outside the jurisdiction of 
that body. But the court has been just as conservative in 
deciding cases brought before it as in thus delimiting its 
field of activity. When the case has involved points deal- 
ing with the policies of either the executive or legislative 



322 



The American Federal State 



Concurrent 
jurisdiction. 
Cases that 
may be ap- 
pealed. 

Cooley, 
Const' I Law, 
127-133. 

Cooley, 
Const' I Limi- 
tations, 
18-23. 



departments, the courts have always refused to consider 
it or to interfere in any way with political questions. 
E.g. Congress and not the court decide when insurrections 
exist. Congress uses its own discretion in performing its 
duties, provided it does not exceed its constitutional powers. 
The judiciary has therefore confined itself to legal matters 
and cases involving individual rights. In addition, it has 
refused to allow Congress to enlarge the original jurisdic- 
tion of the Supreme Court or the jurisdiction of the national 
judiciary as a whole; it has permitted state courts to exer- 
cise extensive concurrent jurisdiction with the United States 
courts, and has in every way acted with discretion and 
judgment. 

382. Relation to State Courts. — In general the United 
States or the state courts have exclusive jurisdiction over 
certain classes of cases, but there may be instances of con- 
current jurisdiction. For example, a case coming under 
the postal laws or under a state law supposed to involve the 
United States Constitution may be tried in either a state 
or a United States court, as the plaintiff prefers. In such 
cases the final decision rests with the national court. When, 
in a case arising under a state law, the state court decides 
that the law is repugnant to the United States Constitution, 
it is not appealed to the United States courts; but if the 
state court decides that it is not repugnant to the national 
Constitution, the case must be carried to the Supreme 
Court of the United States. Again, when a state court 
decides in favor of any "right, title, authority, privilege, 
protection, or exemption " granted by the United States 
government, the decision is final, but the case may be 
appealed to the Supreme Court if the decision is adverse. 
In cases tried by the national courts which involve points 
of state or of the common law, the attempt has been made 
to follow the rulings of the highest state tribunals; but this 
has been only partially successful, as the national courts 
have felt it more necessary to be consistent with each other 
than with state courts. 



The Judicial Department 



323 



383. The Supreme Court ; Organization. — The Supreme Composi- 
Court consists of one chief justice and eight associate jus- *!°"^' *"' 

° sions, and 

tices, appointed by the President for life. The court holds decisions, 
its regular session in Washington, beginning in October, and Harrison 
the presence of six justices is necessary before a decision ibid., 
is rendered. These decisions are written by the different 314-320. 
judges to whom particular cases are assigned by the chief 
justice after discussion by the different members of the court. 
The opinion is then read in the presence of the others, a 
vote is taken, and, if accepted by the majority, it becomes 
the decision of the court. Dissenting opinions are often 
given by the minority in suits involving important principles. 

Each justice of the Supreme Court is also assigned to a Circuit Court 
particular circuit, in which he is obliged by law to hold ""*'"• 
court at least once in two years. He is likely to be called 
upon for service in the Circuit Court of Appeals in his 
circuit, so his position is no sinecure. 



Until 1807 the court had but five associate justices. From 1807 to 
1837 the number was six; after 1837, eight. In 1863 it was increased 
to nine; but in 1 866, in order to prevent President Johnson from mak- 
ing appointments, it was practically reduced to six. Since 1869 there 
have been eight associates of the chief justice. 

In 1901 the court was composed as follows: — 



Number 
(1789-1900). 





Circuit 


Appointed 


Chief Justice Melville W. Fuller (111.) 


Fourth 


1888 


Associate Justice John M. Harlan (Ky.) .... 


Sixth 


1877 


Associate Justice Horace Gray (Mass.) 


First 


1 881 


Associate Justice David J. Brewer (Kan.) . . . 


Eighth 


1889 


Associate Justice Henry B. Brown (Mich.) . . . 


Seventh 


1890 


Associate Justice George Shiras, Jr. (Pa.) .... 


Third 


1892 


Associate Justice ' Edward D. White (La.) . . . 


Fifth 


1894 


Associate Justice Rufus W. Peckham (N. Y.). . 


Second 


1895 


Associate Justice Joseph McKenna (Cal.) .... 


Ninth 


1898 



384. Jurisdiction. — The jurisdiction of the Supreme appe'nate 
Court is of two kinds, — original and appellate. Those jurisdiction. 



324 The American Federal State 

Brit, and kinds of cases that shall be tried first in this court are 
Amer. specified in the Constitution: but the court itself has de- 

Encyc. of '■ -^ . 

^aw.xxvii, cided that as this jurisdiction is not exclusive, Congress 
638-644. naay permit other courts to exercise it. The cases are those 

"affecting ambassadors, other public ministers, and consuls, 
and those in which a state shall be a party." The appellate 
jurisdiction of the court may extend to all other cases, but 
to do this would lead to a needless increase of its business. 
Cases which are now appealed may be divided into three 
classes, according to the courts from which appealed: 
(i) Cases from either the district or circuit courts are those 
in which the jurisdiction of the court is in question, final 
sentences or decrees in prize causes, cases of conviction 
for capital crimes, those involving the Constitution of the 
United States or constitutionality of any law, and cases 
where a state law is said to be in contravention of the 
United States Constitution. (2) The decisions of the Cir- 
cuit Court of Appeals may be reviewed where the case in- 
volves ^1000 — except cases between citizens of different 
states or a citizen and an alien — cases under patent revenue 
and criminal laws, and cases in admiralty. (3) All cases 
tried in state courts which may be appealed, as we have just 
seen (§ 382), are carried directly to the Supreme Court. 
Organization 385. Circuit Court of Appeals. — The Act of 189 1 created 
and junsdic- jj^jg court for the purpose of relieving the Supreme Court 
of most of its appellate business. There are as many courts 
Encyc of ^^ there are circuits, that is, nine, and each is composed 
Z,aw, XXVII, of three persons, the Supreme Court justice of that circuit 
'^5 49- and two of the regular circuit judges, or possibly district 

judges. Any two of these may hold court at any time, but 
the places are designated by law. All cases appealed from 
the district or circuit courts, and not taken directly to the 
Supreme Court, are reviewed in this court. The decision 
of the court is final in some of these cases, as in those in- 
volving criminal, admiralty, revenue, and patent law, but 
in all others the case maybe carried to the Supreme Court, 
either by appeal or on writ of error. 



The Judicial Depai'tment 325 

There has already been some complaint that different A defect, 
suits involving similar principles, which cannot be carried 
higher, may be decided in one way by one Circuit Court 
of Appeals and in another way by another, so that what is 
legal in one circuit is illegal in a second. To remedy this 
difficulty a single court has been suggested to which appeal 
may be taken in such cases. 

386. Circuit Courts. — For each of the nine circuits Composi- 
either two or three circuit judges are appointed who may *'°": 9"^'' 

' naljunsdic- 

hold court separately or together. Before 1891 the court tion. 
possessed both original and appellate jurisdiction, but by ^ and A 
the judiciary law of that year, when the whole system was Encyc. of 
reorganized, only original jurisdiction was left. It may be ^««'' ^^Vll, 
said that all cases involving ;^2ooo or more, coming under 
any one of the classes specified in Article III, Section 2, 
cl. I, of the Constitution are tried in this court, but may 
be appealed to one or the other of the higher courts. 

387. District Courts. — There are now seventy-nine dis- District 

tricts in the United States, nine of which are in the terri- Judges and 

, , , , 1. . . officers, 

tones; and there are for the state districts sixty-seven 

district judges, as three of the judges have two districts £^"^ ; 
apiece. To each district is also assigned a district attor- z.aM<,xxvii, 
ney, who represents the United States in all suits arising ^59-664. 
in the United States courts held in his district, and a mar- 
shal, who executes the decision of the court and who may 
call out a posse or ask aid from the President in the per- 
formance of his duties. The jurisdiction of the court is 
original, and covers a multitude of cases from those of 
minor importance to the final decision of prize causes. 

388. Court of Claims. — The court of claims was organ- Task of the 
ized, in 1855, for the purpose of deciding the amount due ^°"'^' 
any persons who had a claim of any kind against the national B. and A. 
government. It is composed of five judges, with a salary i^wXXVU 
of ^4500 each, and holds its sessions at Washington, trying 664-681. 
suits brought by individuals for money supposed to be due 

them by the United States. The court decides on the jus- 
tice of the claim and the amount the plaintiff is to receive. 



326 The American Federal State 

QUESTIONS AND REFERENCES 

The Position of the Courts (§§ 374-377) 

a. On courts, consult Burgess, Comparative Constitutional Law, II, 
320-337 (U- S.), 338-346 (Eng.), 347-351 (Ger.), 352-355 (Fr.) 356- 
366 (all). 

1. How do our courts compare with those of England, France, and 
Germany in organization, methods, and jurisdiction ? 

2. If the Supreme Court can set aside a law of Congress, is not the 
court above Congress ? Which has the greater positive power ? the 
greater negative power ? 

i. Look up in Thayer's Cases in Constitutional Law the a,;ciaiOns 
on some of the important laws declared unconstitutional. Were any of 
the decisions unanimous ? Which ones were decided by a bare majority ? 

ii. Name a recent case in which a law of Congress was held invalid. 
On what grounds ? By what members of the court ? 

The Courts as a Whole (§§ 378-382) 

1. In what respects may our system of courts be altered without a 
constitutional amendment ? Is the number of Supreme Court justices 
dependent on statute or constitutional law ? 

2. Why would a ten or fifteen year term be undesirable ? 

3. Why does not the eleventh amendment prohibit citizens from 
suing their own state ? 

The Supreme and Inferior Courts (§§ 383-388) 

a. See Congressional Directory for biographies of Supreme Court 
justices and some other facts. For fuller lists of judges, attorneys, 
marshals, etc., consult Political Almanacs. 

i. Name the most important chief justices we have had. Who is 
Supreme Court justice for your circuit ? Who are the other judges 
holding court in that circuit ? 

ii. What are the limits of your district ? Where is the court held ? 
Give the names of the district judge, the district attorney, the marshal. 
How do the judges (U. S.) of your locality compare in ability with the 
state judges ? 

iii. What Supreme Court justices are Democrats ? which ones are 
Republicans ? By whom was each appointed ? What experience did 
each have in the territory over which he now holds circuit court ? 



CHAPTER XVII 

THE RELATIONS OF THE DEPARTMENTS 
General References 

Bryce, The American Commonwealth (abd. ed.), 155-167, 192-200. 

Wilson, Congressional Government. 

McConachie, Congressional Committees, 211-258. Shows how the 
committees form bonds between the departments. 

Cooley, Constitutional Law, 

Bundy, The Separation of Governmental Powers. The most complete 
study of the subject; includes the state governments. 

Bagehot, The English Constitution. A brilliant and forceful presenta- 
tion of its actual workings, chap. II especially valuable. 

Davis, H., on " General Relations," in /. H. U. S., Ill, 482-523. 

Mason, The Veto Power. Vetoes treating relations of the depart- 
ments. 

Goodnow, "The Executive and the Courts" {P. S. Q,l, 533-559). 
Judicial remedies for administrative actions which restrict indi- 
vidual liberty. 

Elliot, "The Legislature and the Courts" {P. S. Q., V). 

Willoughby, The Supreme Court. Relations to Congress and the 
executive and influence on politics considered. 

Coxe, /udicial Powers and Unconstitutional Legislation. 

Lalor's Cyclopedia, article by Johnston on " Relation of President to 
Congress and Judiciary," and on " Veto." 

389. The Two Demands upon a Governmental Organization. Separate 
— For the proper performance of its duties, every modern departments, 
government must fulfil at least two requirements. First, 
there must be a sufficiently complex organization to accom- 
plish the many and varied tasks of governing. That is, 
there should be enough parts to the machinery of govern- 
ment so that but few duties are required of each part, these 
few duties being alike in character. However numerous 

327 



328 



The Ainerica7i Federal State 



Union of 
departments. 



Types based 
on relation of 
executive to 
legislature. 



Character of 
the cabinet 
system. 

Dicey, Law 
of the Const., 
413-416. 

Medley, 
Eng. Const' I 
Hist., no, 
III. 



these parts may be, they may then be classified as belong- 
ing to the legislative, the executive, or the judicial branch 
of the government, so that at least certain of the parts, 
i.e. those belonging to the same branch, will work together. 
Second, these branches, or departments, must be more or 
less united in their action, or we have three central gov- 
ernments instead of one, and that is little better than no 
government at all. 

390. Two Types of Government. — It is the relation of 
the departments to each other which is of special interest 
in this chapter. We notice upon observation that there 
are in existence two types of government, which represent 
respectively close union of the departments and a fair 
degree of independence among them. Great Britain and 
the United States are usually selected as the best examples 
of these types. In the former the fusion of the legislative 
and executive departments is remarkably complete, for, 
though they are separate in form, they work almost as a 
single body, the judiciary being subordinated to them. In 
the United States, on the contrary, every effort has been 
made to prevent the coalescence of the departments, and, 
so far as possible, not only are the departments kept inde- 
pendent, but coordinate as well. As many political sci- 
entists of experience have preferred the English system to 
our own, and have, in some cases, gone so far as to favor an 
adoption of a modification of the cabinet or parliamentary 
form in this country, the character of each system with the 
advantages most apparent will be briefly considered. 

391. Cabinet Government. — In England almost all real 
power is centred in the hands of a committee of Parlia- 
ment, which has extraordinary control over legislation and 
complete charge of executing the laws. This committee 
is called the Cabinet. Its omnipotence is apparent rather 
than real, because it can use its power only so long as it 
reflects the wishes of the House of Commons. We have 
presented a curious paradox — the Cabinet is master so 
long as it is servant. Just as soon as it gets out of sym- 



The Relations of the Departments 329 

pathy with the lower house, custom compels it to resign, 
unless, by calling an election for a new house, the Cabinet 
can obtain a majority of the Commons. 

392. Advantages of the Cabinet System. — Three princi- Concentra- 
pal advantages are claimed for parliamentary government. *'°" °^ power 

* ' ° andresponsi- 

(i) It concentrates power. The government has but one biiity. 
policy : that of its leaders. No time is lost in friction j^j g 
between the different departments or the separate houses. 
Every part of the government works in perfect harmony ^ng. Const. 
with every other, showing the existence of a single source 
of authority. In a word, the government is efificient. 
(2) The Cabinet is responsible for the success or failure 
of the government's policy. To irresponsible power have 
been due many of the evils about which history has only 
too many tales to tell. For this reason men have feared 
the concentration of authority. But the experience of Eng- 
land for a century seems to show that under proper re- 
straint, centralization of power may be an unmixed benefit. 
This responsibility is enforced by compelling a Cabinet to 
resign when the House lacks confidence in its leaders. If 
the Cabinet thinks it, and not the House, is supported by 
the people, an election is called, and the Cabinet stays or 
withdraws according to the verdict. By this means (3) the 
government responds quickly to public opinion, because 
individual members are constantly being chosen, so that 
the complexion of the House is quickly modified if the 
government becomes unpopular. There is nothing rigid 
about the system, so that it is not necessary to change 
governments any oftener than the people demand; and they 
must be changed if the governing class wishes, though not 
at once. 

393. Cabinet Government under English and American Con- Reasons for 

ditions. — Efficiency and adaptability to new needs are ^^^cess m 
,,,.,,., , ,, . England, 

not equally desirable m the governments of all countries. 

England seems to have developed the forms of government 

which gives the best results for her, but this is due quite 

as much to certain political conditions as to her cabinet 



330 The American Federal State 

system. The English are preeminently conservative, and 
the control of affairs of state is, and has been, in the hands 
of her most conservative men. There never has been in 
the British Isles anything like the practical application of 
government by the people that has taken place in America. 
An almost universal suffrage has not meant anything like a 
real democracy. All political matters are still under the 
control of a select set of men — men of education, cul- 
ture, wealth, and ability — who have given England good 
government while maintaining class rule. 
Dangers in We know perfectly well, from the experience of France 

the system m ^^^ other nations, that cabinet government demands for 
its most successful operation conditions similar to those 
existing in England. Even Bagehot, among the ablest of 
the critics and admirers of the British Constitution, is 
perfectly frank in admitting that the efficiency of the Cabi- 
net would be a serious defect under true government by the 
people, simply because under parliamentary government of 
the English types public opinion may be brought to bear, 
with tremendous force, upon the Parliament and the Min- 
istry. Two dangers arise from this, apparently contra- 
dictory, really twin evils: (i) Governments that are too 
representative of the masses would wield a force uncon- 
trolled so long as it exists, and would tend to degenerate 
into mob rule. (2) Change from one dictatorial govern- 
ment to another is rendered easy. 

With conditions as they are on this side of the Atlantic, 
it seems best to accept the conclusion of Sir Edward Free- 
man that both England and the United States have the 
government best adapted to their requirements. 
Historical 394- Presidential Government. — The reason for the 

and practical marked separation of the departments in the United States, 
its existence however, is historical rather than practical. That is, it is 
in United the outgrowth of the conditions of the last century more 
than the experience of this. The desire which existed in 
the infancy of our republic to keep the government from 
injuring the people caused statesmen to dread all concen- 



The Relations of the Departments 331 

tration of power and to prefer division of it, even though Cf. Bryce, 

cooperation between the departments was less perfect and =°i-2i3 

(disadvan- 
responsibility less easily fixed. They did not approve of tages). 

uncertainty of tenure, even if that uncertainty meant that 
the administration kept in closer touch with the best feel- 
ings of the nation. They wished fixed terms of office, 
largely because reelection gave opportunities to keep a 
check on public servants. This preference for a safe 
government therefore resulted in two things: (i) Partial 
independence of the legislative, executive, and judicial 
departments; and (2) terms of office for a fixed period, 
which could be diminished only by impeachment or 
expulsion, and increased by nothing except reelection. 

395. Advantages of Checks and Balances in America. — On increase in 
account of the rigidity of the Constitution of 1787, due to ^^^.biiity of 

° ■> government. 

the difficulties surrounding its amendment, the indepen- 
dence of the departments became one of the permanent no xLVi'ii 
principles of our government. Nor has the history of the 
nineteenth century produced a feeling that the separateness 
of the departments is a disadvantage. No system of gov- 
ernment is without its defects, and the American people 
believe that a safe government is better than an efficient 
one. The checks and balances adopted to protect the 
people from the government have helped to protect the 
people from themselves. The greatest danger of a repub- 
lic, "the tyranny of the majority," has been, to a large 
extent, avoided by these very means. Fixity of tenure and 
division of power have given us less government than we 
should have had with political institutions like England's, 
and have, no doubt, often resulted in delay and discord; 
but, on the whole, they have made it possible for democracy 
to work out its own salvation. 

Some of the means by which the departments have been Means by 
able to maintain their independence, and the ways in which which mde- 
they have influenced each other, are indicated in the fol- departments 
^bwing paragraphs. It is the intention to emphasize the has been 
ictual working relations of the departments, rather than the 



332 



The American Federal State 



Very great 
power ex- 
ercised by 
laws or 
through 
committees. 

Bryce, 
156-159- 

Wilson, 
Cong, Gov't, 
270-272, 
277-279. 



theoretical and constitutional checks and balances, and 
care should be taken to distinguish between powers ordi- 
narily or actually used, and those which one department 
has over another, but which, for some reason, have lain 
dormant, and have therefore partially disappeared through 
disuse. 

396. Congressional Control over the Executive Departments . 
— There has never been very great danger that Congress 
would become subservient to either the President or the 
courts, for it has constantly tended to encroach upon the 
sphere of these branches. The American practice of allow- 
ing the legislature to specify with great exactness the way 
a law shall be executed, has left to the executive little dis- 
cretion, and has given Congress constant supervision over 
the execution and the administration of the laws. To 
oversee the work of the executive departments each house 
has created standing committees, that have charge of all 
matters arising in Congress which relate to the departments 
of State, the Treasury, etc. Among the duties belonging 
to these committees is that of organizing the departments, 
i.e. deciding how many and what bureaus and divisions they 
have, what work is assigned to each, the force required for 
the performance of the work, and many other details. Each 
year the departments ask for what money they need or 
desire, but obtain what the committees are willing, unless 
Congress overrules the committees and indorses the esti- 
mate of the departments. If a secretary wishes some 
reform in methods employed in his department, or believes 
he should be given enlarged power, there is no pressure he 
can bring to bear upon the committee except suggestions 
through the President's message, and personal appeal or 
silent and secret influences. In short, the secretary can 
do very little with Congress, and Congress may, in theory, 
do almost anything with him, may, in fact, abolish the 
department or any part of it. Drastic measures are of 
course quite uncommon; but if, as is usually the case, the 
secretary is better posted on the requirements of the depart- 



The Relations of the Departments 333 

ments, even the possibility of executive subordination is 
not desirable. 

As often happens, the real power does not lie where we Discretion- 
naturally expect. The departments are, it is true, greatly ary power of 

, , 1 .11 r ^ 1 1 the depart- 

dependent upon the good will of Congress; but they, never- ments. 
theless, have a great deal of liberty in managing their own 
affairs, so that frequently Congress has less control than 
seems necessary. For example, take the Treasury during 
the last twenty-five years of the nineteenth century. Who 
gave it authority to lay aside ^100,000,000 for a gold 
reserve? Who conferred upon it the right to discriminate 
between gold and silver in conducting the business of the 
government? Notice the ease with which a Secretary of 
the Treasury made use of an old law to issue bonds Con- 
gress begrudged, and we can but admit, after observing 
these facts and others like them, that at least one depart- 
ment has exercised its discretion in matters of moment. 

397. Congress and the President. — Much of the Presi- Means of 
dent's power is derived directly from the Constitution and avoiding a 
is, therefore, to quite an extent, beyond the reach of the 
most avaricious Congress. His right of participating in J^^j 
legislation through the veto can be overridden only by a two- 
thirds majority of each house and constant opposition to Laior iii ^" 
the administration. Congress is more likely to resort to 642-645. 
subtle means. One of these that has played, and may 
again play, a by no means minor role is the rider. This 
consisted of attaching to an appropriation bill some meas- 
ure distasteful to the President. As the President could 
not distinguish between the totally different portions of the 
new bill, he was obliged to veto all or let it pass. Since 
the appropriations were indispensable and might often affect 
his own work, the President usually signed his name to 
a bill containing a rider he disapproved, but the practice 
became so objectionable that it is now forbidden by the 
rules of the House. 

If Congress succeeds in making a law against the wishes ^^^".^ °^ 
of our chief executive and he ignores it, Congress is forced President. 



334 



The American Federal State 



Ford, Amer. 

Politics, 

287-291. 



Treaties and 
appoint- 
ments. 

Bryce, 78-81. 

Harrison, 
This Country 
of Ours, 100- 
104, 107-110, 
^134-141. 



Influence 
and power 
of President 
over Con- 
gress. 



to resort to other methods. It may gain its ends by new 
legislation. It may coerce the President by refusing to 
consider the bills he has most at heart, by blocking in 
every way anything he may attempt, or by withholding sup- 
plies or money for executive officials, or even the Presi- 
dent. When Congress is really in earnest, none but the 
strongest or most obstinate executives have dared to thwart 
it, and, in consequence, more than one President has 
become the tool of Congress. If, however, the legislature 
fails, even by the use of such methods, it has still the right 
of impeachment, intrusted to its care by the constitutional 
convention in order to make a dictatorship impossible. 
But its practical value is almost nil; for the failure of the 
reconstructive Congress to win a victory in its warfare with 
President Johnson by the use of impeachment seems to 
have consigned that check to oblivion and make it little 
more than an historic memory. 

398. The Senate and the President. — A more real menace 
to the independence and efficiency of the President exists 
in the negative which the Senate has upon his power of 
making treaties and appointments. That the Senate does 
not hesitate, even when on the best of terms with the Presi- 
dent, to interfere with his actions for the purpose of pre- 
serving its own dignity is plainly shown in numerous cases, 
recent and remote. But where ill feeling exists between 
the upper house and the executive, the latter has been 
able to make no headway in his negotiations with other 
nations unless willing to do as the Senate wishes, and his 
appointees have been ignored or rejected with systematic 
regularity. As a matter of fact, the power of appointment 
belongs rather to the Senate, no matter how cordial may 
be its relations with the President, while its feelings on 
treaties must always be taken into account. 

399. Executive Domination of Congress. — Nevertheless, 
the working relations of the two departments are not one- 
sided. The periods of presidential weakness have been 
numerous and prolonged, but they have been due more to 



The Relatiojis of the Departments 335 

the character of our chief magistrates than to any defect in Johnston, in 
the presidency itself. The way in which Jefferson, Jackson, ^aior, 11, 
and later Presidents have brought Congress to their own 
way of thinking in time of peace, is conclusive proof that pg^fi^^ ^'^' 
a strong executive is not likely to submit to the domina- 289. 
tion of Congress. The veto is one of the most powerful Burgess, Poi. 
means used to bring executive pressure to bear, and the Science, 11, 
few instances where the veto has been interposed in vain ^^^~'^^7* 
point a significant moral. The message means less than it 
once did, for in our early history it was carefully consid- 
ered and discussed, often being the chief basis for proposed 
legislation. Yet both the annual and the special message 
may give a new turn to the work of the law-making body. 
This is especially true of the messages sent to special ses- 
sions convened at the wish of the President. Congress has 
been forced to consent to laws which were objectionable 
to the larger part of at least one chamber. The repeal of 
the Sherman Silver Act, in 1893, is a case in point. So 
long as the President alone can call Congress together in 
extraordinary session, he has an advantage over that body, 
positive and negative in its character : positive in that he 
can summon it to do what he wishes, though he cannot 
compel it to do what he asks; negative, because no matter 
how much Congress feels the need of a meeting, it can hold 
one if he is unwilling only by making concessions of some 
magnitude. 

400. The Independence of the Executive. — Besides this Almost un- 

direct influence over the action of the national legislature, '™>*cd miii- 
, -r^ . , . ... tary power, 

the President possesses certain powers whose exercise is 

not equally limited by Congress, but which, nevertheless, ^ in Forum 
affects Congress greatly. The two which are most potent XXiii, 
for good or evil deal with the control of the army and the (^^97). 
acquisition of territory. The army is created and organ- 
ized by Congress for a period not exceeding two years. ModertJpoi 
War can be declared by that body alone. Yet the Presi- instUuHom, 
dent can do almost as he pleases with the military forces ^°~^^^' 
of the United States, and he may compel the Congress to 



336 



The American Federal State 



Power in 
annexations. 



Evidences 
and results of 
separateness. 

McConachie, 
Cong. Com- 
mittees. 

Bryce, 
201-213. 



admit that war exists, as he did in 1846. In other words, 
the President may use the army in such a way that he really 
begins war, and Congress has no alternative but to indorse 
his action, or to risk loss of national prestige by an un- 
seemly withdrawal from hostilities. We found ourselves 
in that predicament at least twice during the nineteenth 
century. 

In acquiring and, to a certain extent, in controlling ter- 
ritory, the President is even less subject to the check of 
Congress. Enlargement of our domain has never been 
unpopular with our people, and even when two-thirds of 
the Senate have not personally favored the treaty by which 
purchase was made, they have not dared to reject it. Had 
the President possessed no initiative of this character, it is 
reasonably certain that our boundaries would be less exten- 
sive than they now are. Almost without exception this 
territory was at first under the absolute control of the Presi- 
dent, and, in some cases. Congress has found it difficult 
or unwise to supplant the provisional government for a 
period of years. 

401. Cooperation between Congress and the Executive. — 
Evidently, then, the independence of the executive is in 
no immediate danger. But what about the bonds of union 
between the legislature and the President? Are these 
bonds of such a character that each department may work 
to advantage with the other, or are the departments con- 
stantly clashing in the performance of their ordinary duties? 
Their separateness might lead us to think that they hinder 
more than they help each other, but such is not the case. 
Although the work of each relates to the same laws, it deals 
with different phases of those laws, and neither one is in 
any real sense dependent on the other in performing the 
majority of the tasks assigned to it. There can be no 
doubt that in many cases much needed legislation has been 
prevented because the House, the Senate, or the President 
has objected, and no means could be found to whip the 
refractory member into line. It is also probable that 



The Relations of t/ie Departments 337 

many of our laws are less perfect in form and content than 
they would be if each had been imposed by some one set 
of leaders, and had not been subjected to changes at every 
stage of its career as a bill. The great objection to the 
separation of the departments is, that there is no one body 
of men to whom the executive and the legislature are both 
responsible, and whose direction they follow; but, even if 
each of our departments places the emphasis upon different 
laws, they cannot greatly hinder one another, and their 
joint responsibility to the same constituency — the people 
of the United States — and their dependence upon public 
sentiment, insures a reasonable cooperation where that is 
indispensable. 

402. The Effect of Political Parties upon the Departments. Cooperation 
— The working relations of the departments, particularly *^':°'^^^ 
Congress and the executive, have been affected less by their parties, 
theoretical independence of each other than by the fact -p^^^ ^^^^ 
that a single party controls all of them, or one party has a Politics, 
majority of one or both Houses of the legislature, while vxviii 
the other has chosen the President. There have grown up 
between the Congress and the executive branch numerous 
customs and methods which have enabled the government 
to bridge the chasm between these departments; but these 
customs can be used to the best advantage only when the 
two departments represent the same policy and believe in 
similar principles. If the President and the majority of 
the Senate and House are of the same political faith, the 
effect is immediately noticeable in the amount of impor- 
tant business transacted. But when one party dominates 
one-half of Congress and the opposition controls the other 
half, or when the President and Congress are at swords' 
points, not only does legislation suffer, but the adminis- 
tration of the law may be hampered by lack of proper 
understanding between the secretaries of the executive 
departments and the leaders of Congress. So vitally do 
the parties affect the success of our national government 
that many students of our institutions have sought to per- 



33^ The American Federal State 

feet the union of the departments through the agency of 
the political party. 
Heads of 403. Clossr Union of the Departments. — Some of these 

departments ^^^ others believe that we shall get better results in law- 
(proposed) . making and administration by allowing the members of our 
p. , Cabinet to appear in either house of Congress, to address 

at end of them on subjects relating to their departments, and even 
chapter. ^^ introduce bills. Certainly some confusion may be 

avoided in this way, and the secretaries might have con- 
siderable influence in securing new and valuable laws. So 
far as the secretaries are concerned, there would be a gain 
in dignity, and possibly in power, over the present rather 
unsatisfactory method of appearing before committees. 
Yet we must remember that the real business of Congress 
is done in committee, and that, especially in the House, 
oratory carries little weight. The suggestions are well 
worth careful study, and if their adoption would raise the 
standard of legislation, as well as render administration 
more effective, the proposed plan would be doubly welcome. 
Advantage of 404. Influence of the Judiciary over Congress. — Since our 

judicial inde- courts are the guardians of the Constitution and of indi- 
pendence. ,., .. , , 11,, 

vidual rights, it is necessary that they should be as free as 

possible from political control and legislative interference. 
As they have expressly refused to consider cases that were 
political rather than legal (§ 381), the fear that they may 
constitute an unreasonable check on Congress is ground- 
less; consequently the advantages of judicial independence 
are many, the disadvantages few. 
Decisions in- So far as the courts can affect the other departments, their 
voiving laws, powers are negative rather than positive. Their decrees 
Cooiey, are, in effect, "Thou shalt nots" restraining from action 

^"i-iiz^^' ^^g^^^y ^^ constitutionally wrong, yet at the same time 
producing a higher degree of public morality among the 
Supreme ^' departments of government as well as among citizens, and 
Court. often leading to increased activity of the central govern- 

ment. The wholesomeness of the influence exerted over 
Congress is observable in that list, but two hundred in all, 



The Relations of the Departments 339 

of cases involving laws that have been declared unconsti- 
tutional. The magnitude of the power wielded over the 
same body may be suggested by calling to mind but two; 
Marburyv. Madison (§ 145) and the Slaughter House Cases 
(§§ 213, 248, 249); while the way Congress has been aided 
and strengthened is apparent from the effect of the deci- 
sions in McCulloch v. Maryland (§ 168) and Texas v. 
White {% 213). 
405. Judicial Dependence on Congress. — The indepen- Dangers ot 

dence of our courts is maintained quite as much by the legislative 

. , ,. . , . . , interference, 

operation of public sentiment as by any constitutional 

guarantees. So long as the existence of the lower national ^^^^f*' 
courts, the number of the Supreme Court justices, and, to 
some extent, the jurisdiction of the different courts is ^ 
dependent upon statute, so long does the legislative depart- 
ment hold the judicial department at its mercy. The just 
pride taken by the people in the integrity and ability of 
the Supreme Court especially has restrained Congress 
from attempting to use its power except in certain rare 
instances, and the need of executive cooperation in a radi- 
cal change of the judiciary tends to lessen any danger that 
might exist. In the period of reconstruction. Congress did 
more than once prevent the court from interfering with its 
work in the South; but, under such extraordinary condi- 
tions, when principles of long standing were not carefully 
observed, and more important infringements of constitu- 
tional rights took place, these acts were of comparatively 
minor importance. The spirit with which the nation 
accepted the federal judiciary act of 1801, by which extra 
circuit judgeships were created for partisan reasons, and 
c" the law of 1869, which placed two more justices on the 
Supreme Court bench, partially for the purpose of revers- 
ing a decision of that court, are evidences that political 
partiiS cannot afford to do serious injury to the judiciary. 

4cf>. The President and the Courts. — The right of the Executive 

President to appoint justices, with the advice of the Sen- disregard of 

. ,. , , , , , , , . . decisions. 

ate, IS '■'able to abuse only when death or resignation occurs 



340 



TJie American Federal State 



Willoughby, 

Supreme 

Court. 

Bundy, 
Separation of 
Gov'tal 
Powers, 
62-68. 



Separation 
without inde- 
pendence. 

Cf. Bundy, 
Separation 
of Gov'tal 
Powers, 
39-46. 



at an abnormal rate during a particular administration. 
But as the inclination to select personal friends or political 
allies is not less marked during recent years than in our 
earlier history, constant watchfulness is necessary to main- 
tain the high standard of the past. The President is, how- 
ever, quite as likely to do the court harm by refusing to 
respect its decisions. The three most conspicuous exam- 
ples of this contempt were Jefferson's neglect to answer 
subpoena of the trial of Aaron Burr (1807), Jackson's 
treatment of Marshall in Worcester v. Georgia (1831), 
(§ 176), and Lincoln's refusal to allow Taney to issue writs 
of habeas corpus (1862), (§ 204). Cases of this character 
are rare, as the courts never seek to dictate what policy the 
executive shall adopt, and in two of those enumerated the 
action seemed justified by the circumstances. Yet it can- 
not be truthfully said that each department is the final inter- 
preter of its own powers except within that limited field 
left it by the judiciary. In regard to most of the duties of 
Congress and the President, the decision of the court is 
final, alterable only through the votes of the people. 

407. The Departments of the States. — The separation of 
the departments in the states does not seem to have given 
as great satisfaction as in the national government, and its 
comparative failure may be interpreted to mean that separa- 
tion without independence is not desirable. In the states 
the executive department is much more taken up with 
details of administration, and less concerned with duties 
of importance, than the national executive. In addition, 
these administrative tasks are assigned to many ofificials 
only nominally connected with each other. Naturally, 
then, the state executive is in a position much inferior to 
that of the legislature. The judiciary suffers in somewhat 
the same way; for though it has the right to declare laws 
null and void, it has much less influence than the national 
courts in defining the sphere of legislative action. On the 
other hand, the legislature enjoys an unusual degree of 
power because its powers are not specific and enumerated, 



The Relations of the Departments 341 

but general and residuary. That is, all of the limitations 
placed upon it are negative in character, it being excluded 
from certain things by the United States and the state con- 
stitutions, all else being left to its charge. Not content 
with these extensive legislative powers, it spends much of 
its time arranging the details of administrative action, thus 
further subordinating the executive officials to itself. It 
is, therefore, more like the English Parliament than the 
American Congress, although not an omnipotent body like 
the former. For all of these reasons, the legislative de- 
partments of the states may be said to control the other 
departments, though the latter are, in theory, separate and 
independent. 

QUESTIONS AND REFERENCES 
General Relations of Executive and Legislature 

(§§ 389-395) 

a. For the superiority of parliamentary over presidential govern- 
ment, consult Fiske, Critical Period, 289-300 ; Bryce, American Com- 
monwealth, chap. XXIV; Bagehot, English Constitution, chap. II; 
Wilson, Congressional Government, chap. V ; Bradford, Lessons of 
Popular Government, II, 320-415; also White, " Parliamentary Gov- 
ernment in America," in Fortnightly Review, Vol. XXXII (1879), 505- 

517- 

b. On the advantages of presidential government in the United 
States, see Snow, " Cabinet Government in the United States," in 
A. A. A., Ill (1892), l-ii, and in A. H. A., IV (1890) ; McConachie, 
Congressional Committees, 21 1-258; Lowell, "Cabinet Responsibility," 
in his Essays on Government; and Freeman, "Presidential Govern- 
ment," m National Review, XIX (1864), I et seq. 

1. What has been the degree of success of parliamentary govern- 
ment in other Countries than England ? What conditions in France 
affect its operation there ? 

2. Make a list of the actual powers exercised by the English Cabinet 
from some manual of the English Constitution, and show what kinds of 
powers their executive has that ours has not. 

3. Why is concentration of power not an evil necessarily ? How is 
responsibility enforced in the English system ? How for our Presi- 



342 The American Federal State 

dent ? for our Congress ? Can an undesirable law be repealed most 
easily in England or in America ? Explain how. 

i. Classify modern governments as parliamentary or presidential, as 
far as possible. 

ii. Name the great checks and balances of the American system. 
Enumerate the means or minor checks by which the great balances 
are maintained. 

Congress and the Executive (§§ 396-403) 

a. Plans for perfecting the fusion of the departments will be found 
in some of the references under a, above; also in Report of Senate 
Committee (1883), given in appendix of Ford's Rise and Growth of 
American Politics. See also Ford, ibid,, 365 etseq., and Brown " Cabinet 
Officers in Congress," At. Mon., Vol. L, 95 et seq. 

1. Is the independence of the three departments in our central 
government so pronounced that we have three governments instead of 
one ? If not, is there any danger that they may become so separated? 
Is better cooperation desirable ? How can it be best obtained ? 

2. Show how the executive and the executive departments affected 
our financial policy under Jackson. 

3. What is the purpose of a committee of investigation ? How does 
it collect evidence ? What is the usual result of its work ? 

4. Trace the loss of presidential power after the War of Secession, 
and show what influences led to his regaining a position of prominence. 

5. Find what Congresses since 1875 have been controlled by the 
party which had elected the President. What bills of importance 
were passed by them ? How did the nation approve their work as 
shown in the next elections ? What Congresses have done the best 
work since 1875 ? Look up the composition of Senate and House, 
and ascertain the reason why the legislation was so successful. 

6. What is the difference between the fusion of the departments 
suggested in § 403 and that actually existing in the British govern- 
ment ? Is it possible to devise a compromise between presidential 
and parliamentary government that avoids the most glaring defects 
of each ? 

The Courts and the Other Departments (§§ 404-407) 

I. What are the duties of the judiciary committees of the Senate 
and House ? Do they command some of the best men of Congress ? 
Does the composition vary from Congress to Congress ? Are they a 
hinderance or a help to the courts ? (Cf. McConachie.) 



The Relations of the Departments 343 

2. What legal right had Lincoln to refuse to deliver Merriman for 
trial on request of the chief justice ? What moral right ? In cases 
of insurrection, may the military courts entirely supersede the regular 
ones ? If so, under what conditions ? (Cf. § 204,) 

3. If a United States revenue official imposes upon you an exces- 
sive and you believe illegal tax, what remedy have you ? 

4. Would the separation of the departments be an advantage with- 
out their independence of each other ? Consider fully the bearing of 
§ 407 upon this question. 



CHAPTER XVIII 

THE STATES : CONSTITUTIONS AND GOVERNMENTS 

General References 

Wilson, The State, 469-506. 

Hinsdale, The American Government, 369-391. 

Brj'ce, The American Commonwealth (abd. ed.), 287-396. The best 

brief account. 
Clark, Outlines of Civics, 109-143. Outlines and questions. 
Cleveland, Growth of Democracy, 109-127, 312-351. An excellent 

summary of details. 
Oberholtzer, The Referejidum in America, 99-172 (the second book 

of that name). On constitutions and their amendment. 
Hitchcock, American State Constitutions. Chiefly historical. 
Jameson, Constitutional Conventions, especially chaps. IV, VI, VII, 

VIII. The highest authority on the legal aspects of conventions 

and their work. 
Cooley, Constitutional Limitations, especially chap. XVI. The great 

authority on interpretation of state constitutions and state law.. 
Shaw, "American State Legislatures," in Contemporary Revieiv, LVI, 

555-573. An excellent article on methods and powers. 
Roosevelt, " Phases of State Legislation," in his American Ideals. 
Stimson, American Statute Law, l-l 14. Comparative statistics of the 

provisions of state constitutions (1887). 
Poore, Charters and Constitutions. 2 volumes. The texts of most of 

the charters and constitutions since 1600 (to 1878). 
New York Constitutional Convention Manual. 2 volumes. Texts 

of all constitutions in force in 1894, 



Not subordi- 
nate to the 
United 
States. 

Bryce, 
291-296. 



408. Position of the States. — The states of the American 
Union are self-governing constituent parts of the United 
States. They do not exist primarily or incidentally for the 
purpose of helping the national government carry on its 
work; they are essentially uncontrolled by that government, 

344 



The States: Cotistitutions and Governmettts 345 

but over it they have no power. The people of the state 
are, then, independent of all outsiders within their own 
sphere of action. They may make their own state consti- 
tution in their own way, framing such a government as they 
desire (provided it is republican in form), and granting 
suffrage and civil rights to whom they deem it wise, within 
the limitations of the United States Constitution. 

409. Uniformities and Diversities among the States. — Diversities 
But as a matter of fact the forty-five states exhibit com- Principally in 
paratively few differences in the general character of their 
constitutions, governments, and laws. In details these a^°ij°'- ' 
diversities are both numerous and conspicuous. The great- Laior, ill, 
est dissimilarities are especially observable when we con- 2°^8i2. 
trast newer states with those first settled or compare different 
sections, that is, they are principally due to historical or 
geographical causes, e.g. Michigan and Iowa will be more 
alike than Michigan and Arkansas. This is partly because 
Michigan and Iowa were largely settled by people from 
the same states and countries, and partly to climatic and 
other influences. 

It is not the purpose of this and the succeeding chapter 
to take up the details of the state governments and consti- 
tutions, except to illustrate the more important principles, 
but the attempt will be made to show the general nature 
of the political system in the commonwealths, which is 
practically alike in all. 

F. J. Stimson, who has made an exhaustive study of the constitutions Groups of 
and laws of the states, calls attention to the groups of states among the states. 
members of which there is considerable identity even in details. He 
enumerates three groups ; the largest comprising all of the " Northern, 
Eastern and Northwestern states, more often divided into two main 
bodies, the one following in its legislation the general model of the 
state of New York, the other that of the New England states." A 
second group contains the Southwestern states under the lead of 
Maryland and Virginia, and a third includes the Gulf states, except 
Louisiana, which is very different from the others in many respects. 
California, Dakota, New Mexico, and Georgia present many irregu- 
larities and in a measure cannot be classified with the others. 



346 



The American Federal State 



From 

colonial 
times to the 
present. 

Bryce, 317- 
320. 



Constitutions 
first made by 
the legisla- 
ture. 

Borgeaud, 
Adoption and 
Amend, of 
Consts., 
137-191. 

Appendix E, 
Table I. 

Later by con- 
ventions 
without 
ratification. 

Cleveland, 
Democracy, 
109-113. 



410. The Development of the Written Constitution. — The 
constitutions of the states naturally grew out of the colonial 
charters (§ 66). All of our ancestors were accustomed to 
the idea of a fundamental law superior to the acts of the 
colonial legislature, and in most cases this law was written. 
It was not strange, therefore, that when the old colonial 
governments failed to prove satisfactory, they were replaces 
by others which were more popular, and that the peopte 
created new charters or constitutions prescribing the form 
and powers of government and enumerating civil rigi.*-S. 
How the constitutions developed, and how new methods and 
subjects were introduced, we have considered in Part . 
At this point we might notice the three stages in the 
historical process of constitution-making. 

411. The Three Stages in Constitution-making. — (i) The 
first constitutions were made by legislatures. Sometimes 
the constitutions were created by legislative act, passed like 
any other bill. More frequently the legislature practically 
transformed itself into a constituent assembly, which framed 
such a constitution as it desired; but the constitution 
adopted in this way could be changed by the legislature 
without calling a constitutional convention. 

(2) Much more common, even during revolutionary 
times, was the constitutional convention. This was chosen 
by the regular voters solely for the purpose of making a 
constitution. But so little had the idea of popular coopera- 
tion in government spread that public sentiment did not 
compel the convention to submit the completed constitu- 
tion to the people for ratification. Before 18 10 twenty of 
the twenty-five constitutions had been declared in force by 
the convention that framed them, two of the others being 
made by the legislatures, leaving but three ratified by the 
voters. Since 1838 this method has been used but five 
times, excluding secession constitutions and those adopted 
in 1865: by Florida in 1885, by Mississippi in 1890, b-f 
South Carolina in 1895, by Delaware in 1897, and by 
Louisiana in 1808. 



The States: Constitutions and Governments 347 



(3) The third stage was reached when we find constitu- 
tional conventions with ratification. It must not be sup- 
posed that this mode of making constitutions was adopted 
by all the states at the same time. Massachusetts was the 
first to use it, in 1778, when the constitution proposed was 
rejected at the polls. It is now used in practically all of 
the states, though not always required by the constitutions 
now in force. The people are thus enabled to determine 
negatively, and to a certain degree positively, what shall 
be the character and powers of the state government under 
which they live, and what the most prominent features of 
the statute law shall be like. In other words, by the ratifi- 
cation of the constitutions the people have taken from the 
state legislature the power to make not alone those laws 
that are constitutional, but even many that are purely statu- 
tory, and have reserved to themselves the right of approv- 
ing or rejecting these. Truly a specific application of the 
principle that the people should rule. 

412. Process of forming a Constitution at the Present. — 
The method that is all but universally used when a state 
wishes a new constitution is substantially as follows. The 
legislature takes the initiative by passing a resolution call- 
ing a constitutional convention. In many of the states, 
especially the newer ones, two-thirds of the members elected 
to each house are necessary, others require only a majority, 
and in twelve states there is no constitutional provision for 
general revision. At the next election the voters signify 
whether they favor a revision, and, provided they do, the 
legislature passes a new resolution, in which the number of 
members of the convention is specified, the districts pre- 
scribed, and the mode of choice designated. To this con- 
vention are usually sent some of the best men of the state, 
who make an earnest effort to improve the constitution. 
The new draft may be declared in force by the convention, 
except in one-third of the states; but is ordinarily sub- 
mitted to the voters for acceptance or rejection as a whole, 
though occasionally with extra clauses on such subjects as 



still later by 
conventions 
followed by 
popular 
ratification. 

Bryce, 324- 
328. 

Oberholtzer, 
Referendum, 
103-115. 



Method used 
in most 
states. 

Oberholtzer, 
Referendum, 
128-133. 

Appendix E, 
Table II. 



348 



The American Federal State 



By one or two 
legislatures 
with ratifica- 
tion. 

Wilson. The 

State, 

§§ 1101-1107. 

Oberholtzer, 
Referendum, 

Cleveland, 
Democracy, 
H4-127. 



Why fre- 
quent 

changes are 
necessary. 

Oberholtzer, 
Referendum, 
94-96. Cf. 
also ibid,, 
133-136- 



suffrage, prohibition, or the referendum, upon which the 
vote is taken separately. If the constitution is approved 
by a majority of the persons voting, it supplants the one in 
use. Some states are unwilling to leave to their govern- 
ments discretionary power in calling these conventions, and 
require revision at certain stated intervals, e.g. New Hamp- 
shire has a new convention every seven years, Iowa every 
ten, Michigan every sixteen. New York, Ohio, Maryland, 
and Virginia every twenty. 

413. Amendment of the Constitution. — A great many of 
the changes in the fundamental law occur through amend- 
ment. Here we find less uniformity in the methods of the 
various commonwealths. In every case the amendment is 
proposed by the legislatures, and separately ratified by the 
people, before going into effect, except in Delaware. 
Three of the states ask only a majority of those elected to 
each House before submission to the voters; five require a 
three-fifths vote; nineteen states provide that two-thirds of 
each House shall give their consent; while sixteen, most 
of them older states, demand the consent of two successive 
legislatures by votes varying from a majority to three-fourths 
of the members elected. When we realize that very few of 
the states permit annual sessions of the legislature, we see 
that ample opportunity is given to thoroughly discuss the 
proposed changes in most cases, — an opportunity by no 
means well utilized, for constitutional amendments usually 
receive at the hands of the public a lack of consideration 
and attention that is unfortunate. 

414. Are Constitutional Changes too frequent ? — Notwith- 
standing the restrictions placed upon alteration in the con- 
stitutions, there is a widespread belief that changes are too 
frequent and too radical. Is that feeling justified by the 
facts? If our standard of comparison is the United States 
Constitution, the difference is of course very great. No 
one of the original thirteen states now has its first constitu- 
tion except Massachusetts, which still retains its constitu- 
tion of 1780, amended however in thirty-six particulars. 



The States: Constitutions and Governments 349 

Fourteen out of a possible twenty-three of the states have 
constitutions framed before the Civil War, only six adopted 
new ones between 1890 and 1900, while fifteen have had 
but one each. In view of the mass of material included 
within the present-day constitution, revisions seem no more 
frequent than is necessary. The defect is less in the con- 
tinued changes than in the excessive bulkiness of these 
instruments, which are by no means the outline of gov- 
ernment that the United States Constitution is. 

415. The Contents of the State Constitutions. — The earlier Frame of 
constitutions were brief. They included, as a rule, a bill government 
of rights, a frame of government, and provisions for suffrage, stitmionai 
and perhaps amendment and education. Those adopted provisions. 
later not only cover more subjects, but treat each one at Wilson, The 
greater length, e.g. the new constitution of Louisiana (1898) ^^'^*''' 
devotes some three thousand words to " Suffrage and Elec- 
tions," giving minute directions about even minor matters. ^''3'*=^' 3^6, 
But the most notable characteristic of the newer constitu- 
tions is the addition of articles relating to corporations, ^-^^J"^ g° g'g'^' 

local government, public institutions, water rights and im- 

1 T 1 1 • 1 , Cooley, 

provement, public lands, taxation, and many others. As Const'iLimi- 

stated above, the reason for this is the popular desire to tations, 

have all important laws directly and personally approved '^^~^°' 

by the voters. 

416. The Bills of Rights. — It might seem as though, with Historical 
such constant surveillance of our governments by the people, ^'^^ practical 

,.,,,.,. T J J reasons for 

bills of rights are unnecessary. Indeed, many persons the bills. 
believe that they are retained in the constitutions simply _ 

. ^ ■' Cooley, ibid., 

because their value was apparent m colonial times, and 47,48. 
that now they are of little use. Many others feel that they g^ ^^ 
still assure needed protection from the encroachments of 307-311. 
the government, and that they act as a restraint upon the 
majority for the protection of individual liberty. We must 
not forget that the bill of rights incorporated in the first 
nine amendments of the national Constitution binds the 
United States government only, and does not affect the 
states in anyway; and it may be well to remember that, 



350 



The American Federal State 



The central 
government. 



The local 
govern- 
ments. 



Similarity of 
the two 
houses. 



Numbers 
and terms. 

Bryce, 331, 
332. 336. 



according to the best interpretation of state law, the legis- 
latures of the commonwealths are held to have unlimited 
legislative power unless prohibited by the national or state 
constitution. In consideration of these facts, the useless- 
ness of the bills of rights must certainly be clearly proved 
before we should accept the statement as true. 

Some idea of the character of the provisions in most of the states 
will be given in chapter XXIV, Part III. 

417. The State Government. — All of the states have 
central governments and local governments. The state 
government always consists of the three departments — the 
executive, legislative, and judicial. The executive depart- 
ment is made up of the governor and of other administra- 
tive officials. The legislatures are invariably of two houses. 
There is always at least one state court besides the minor 
ones. 

Most commonwealths have the two units of local govern- 
ment — the county and the township — in addition to the 
municipalities. None of these are true self-governing 
bodies, but are convenient territorial subdivisions of the 
state for the administration of state law supplemented by 
such by-laws and ordinances as each locality requires. 

418. The Legislature; Composition of the Senate. — Both 
houses of the legislatures are chosen by the qualified voters 
at regular elections. The upper house is different from 
the lower principally in its greater length of tenure, its 
smaller number of members, and its special duties. 

The senates, as all of the upper houses are called, vary 
in number of members from fifteen in Nevada to sixty- 
three in Minnesota, the average being about thirty. The 
term of office in about two-thirds of the states is four years, 
in New Jersey it is three, in Massachusetts and Rhode Island 
one, and in the others two years. Sixteen states have the 
same term for senators that they have for representatives. 
In most of the states all the senators are not elected at the 
same time, so that the Senate is a continuous body. As a 



The States: Constitutions and Governmefits 351 



rule, there are qualifications covering age, residence, and 
United States citizenship, and until 1897 there were prop- 
erty qualifications as well in little Delaware. 

419. The Lower House; Composition. — The lower houses 
have about three times as many members as the senates. 
At present Nevada has the smallest house of representa- 
tives, 30, New Hampshire the largest, 398. The terms 
vary from one year in four of the original thirteen states 
to four years in Louisiana and Mississippi, all of the others 
electing for two years. The qualifications for members are 
much the same as those of senators, except that the age 
limits are lower and the periods of residence shorter. 

In practically all of the states, senators and representatives 
are elected from districts equal in number to the members 
of the respective houses. Illinois not only permits three 
representatives to be elected in each district, but provides 
for minority representation. In many of the constitutions 
we find the requirement that the members shall be residents 
of the districts for which they are chosen, and custom does 
not allow a non-resident anywhere in the United States to 
run as a candidate for the legislatures. 

420. Legislative Sessions. — At the time the national Con- 
stitution was adopted (1787), long terms for members and 
short sessions for the legislatures were the exception. It is 
exactly the reverse now. Those states that hold annual 
election for representatives almost of necessity have annual 
sessions of the legislatures; but they are the only ones 
except South Carolina and Georgia. All the others think 
that if legislators come together regularly every two years, 
it is often enough. But most go farther by limiting the 
length of the session to sixty days, usually, or in three cases 
to forty days. Extra sessions may be called by the governor 
at his own wish or when requested to do so by a certain 
proportion of the members. He may even adjourn the 
legislature if they cannot agree upon a day. 

421. Legislative Regulations. — Many of the regulations 
for the state legislatures remind us of those covering 



Numbers 
and terms. 

Hinsdale, 
^^^ 670-676^ 



Election by 
districts. 

Bryce, 332- 
334. 



Biennial ses- 
sions with 
time limits 
the rule. 

Oberholtzer, 
Refer endutn, 
79-82, 85. 



352 



The American Federal State 



Constitu- 
tional rules 
for the 
houses. 

Cooley, 
Const'l 
Limitations, 
158-163. 

Cleveland, 

Democracy, 

312-320. 

Stimson, 
Amer. 

Statute Law, 
§{ 270-278. 

The course 
of a bill 



Contained in 
constitution 
of the state. 

Bryce, 
339-341. 



Three classes 
of restric- 
tions. 

Laws made 
by constitu- 
tional con- 
ventions. 

Wilson, The 
State, 

§§ 1096-1098. 

Oberholtzer, 
Referendum, 
83-86. 



similar subjects in national affairs (§ 258). Among these 
are the quorum, which is a majority of the members of each 
house in all but a few states, freedom of speech in the 
legislatures, the exemption from arrest during the session, 
the expulsion of members by a two-thirds vote, adjourn- 
ment, the keeping of journals, the reading of bills, the judg- 
ing of elections of members, rules regarding compensation 
and restricting the holding of other ofifices by legislators. 

The course of legislation is almost identical with that of 
Congress (§§ 260-263). The committee system is univer- 
sal, and in some states no bill can be brought to its third 
reading without having first been committed; while in a 
majority of the states at least one-half of the whole number 
elected to each house must vote for a measure before it is 
sent to the governor. 

422. Limitations and Prohibitions on Legislation. — The 
state sphere of action has been defined in chapter IX. It 
is said to include all of the powers of government not given 
to the United States government exclusively or denied to 
the states by the national Constitution. Yet no state allows 
its legislature to exercise all of these powers. Every state 
constitution contains prohibitions and limitations which 
restrict the legislatures; but unless a legislature is thus 
restrained by either the United States or the state constitu- 
tion, it has full power to pass any law it pleases. 

The restrictions upon the legislatures may be placed in 
one of three classes. I. Powers legislative in character 
denied to the legislature because assumed by the constitu- 
tional convention, subject to the veto of the people at the 
polls. There are embodied in every constitution a mul- 
titude of articles which are not properly constitutional, 
i.e. are not essential to the organization of the government, 
but are purely statutory, and are placed in the constitutions 
simply because the people consider them of such impor- 
tance that they should not be left for each legislature to 
alter as it pleases. Because they are in the constitutions 
they can of course be changed only in the ways provided 



The States: Constitutions and Governments 353 

for constitutional amendment or general revision. As 
stated above, some of these subjects covered more or less 
fully in the constitution are suffrage and taxation, debt 
limitations, municipal, county, banking, insurance, rail- 
way, and other corporations, public lands, education, 
militia and homestead exemption. 

423. Powers not exercised by the Legislature or the Con- Prohibitions 

vention. — II. The second class of limitations includes I" constitu- 
tions, 
those powers prohibited to the legislature, but whose exer- 
cise is not assumed by the convention. Among the most 
common of these are the prohibitions of lotteries, denial 
of the right to give aid to religious bodies or schools, to 
hold stock in railroad and other corporations, or appro- 
priate money for the same. Many constitutions repeat the 
prohibitions placed by the United States Constitution upon 
the states, as, e.g. those relating to bills of attainder, ex post 
facto laws, titles of nobility, slavery, suffrage, etc. Most 
of the states in their bills of rights place limitations upon 
the commonwealth governments similar to those contained 
in the first nine amendments to the Constitution for the 
national government. 

424. Limitations upon Local and Special Legislation. — Long lift of 
III. There are, in addition, numerous limitations upon the subjects for 
legislature in the exercise of its powers, (i) The most n,ust be 
important of these deals with the passing of local or special general, 
laws. Every modern constitution enumerates a large num- Cleveland, 
ber of subjects for which the legislature can make only ^'»""=*'<^'^y> 
general laws. These general laws may then be applied by 

the courts or the administrative officials to particular cases, 
if they are capable of application at all. No special laws 
shall be made in most of the states relating to the granting 
of divorces, changing the names of persons, for creating 
private corporations, changing the law of descent, giving 
special privileges to corporations, and many others. Local 
laws are prohibited which would permit incorporation of ' 
some particular town and no others, laying out of certain 
roads or bridges, altering county or township lines, etc. — 



354 



The American Federal State 



Sessions and 

bills. 

Cooley, 
Const' I Limi- 
tations, 
164-168. 



Bills relating 
to revenue, 
appropria- 
tions and 
indebted- 
ness. 

Cleveland, 
Democracy, 
321-324, 343- 
34S- 



Vast extent 
of legislative 
field. 

Bryce, 371- 
373. 



all these matters being cared for under laws that apply 
equally to all parts of the state. 

425. Legislative Procedure. — (2) A second set of limita- 
tions deals with legislative procedure. Not only are the 
sessions of a definite duration, except in a few of the older 
states, but often no bill may be introduced within a certain 
number of days of final adjournment. Usually no laws can 
be passed except by bill, whose contents are expressed in 
the title and cover but one subject. The bill must be read 
three times, on different days, except for extraordinary 
occasions, and on the final vote must, in most of the states, 
be approved by a majority of those elected to each house. 
In all but three states bills are subject to the veto of the 
governor, and when not approved by that official must 
receive in each house votes varying from an ordinary 
majority in five states to two- thirds of the members elected 
in fourteen. 

426. Financial Regulations. — (3) A third set of limita- 
tions lies in the domain of finance. Several commonwealths 
still retain the once universal and necessary provision that 
all bills relating to revenue should originate in the lower 
house, but nearly half now give the senates equal rights 
with its fellow^chamber. The taxes levied by law must be 
uniform, and no person is to be exempt from taxation unless 
made so by the constitution. Appropriation bills, except 
the general one, are to be confined to a single subject, and 
in the general bills the governor may often veto particular 
items. Frequently the legislature cannot incur any debt 
nor permit a public corporation to incur any. Some states, 
however, permit debts not exceeding a certain amount, if 
provision is made for the payment of these within definite 
periods. 

427. Powers of the State Legislatures. — Although this 
enumeration of some of the powers that the legislature 
cannot use, or can use only in certain ways, may mislead 
us into thinking that the legislatures do very little after all, 
we shall be convinced that this is not the case if we do 



The States: Constitutions and Governments 355 



no more than examine the laws passed at a single brief ses- 
sion. The number of the laws and the variety of the topics 
treated are alike surprising, and for most of these the 
legislature does just as it pleases. As we have already seen, 
almost the whole domain of private and of criminal law 
is under its control, so that the individual is continually 
affected by the action or inaction of the legislatures. 

428. Special Powers of the Two Houses. — The special 
powers in the states correspond, to some extent, to those 
of the two chambers of Congress, though less extensive. 
The impeachment of public officials is made by the lower 
house, and the trial occurs before the state senates, con- 
viction following usually a two-thirds vote. The senates 
also have more power in appointing and in confirming 
appointments than the other branch of the legislature. 
The lower house, however, still retains the right to intro- 
duce bills to raise revenue in a majority of the common- 
wealths. In one state (Vermont) only the upper house 
can propose amendments to the state constitution, and in 
another (Connecticut) the house of representatives has 
that right. 

429. Defects of the State Legislatures. — The law-making 
bodies of our commonwealths impress many critics as one 
of the least successful parts of our political system. 

(i) It is claimed, often without just cause, that they are 
composed of inefficient men, and, consequently, fail to 
command respect. Many reasons are given for this state 
of affairs, no one of which satisfactorily explains it. The 
mode of electing residents by districts has been assigned as 
the chief cause. The absolute control of states by political 
machines is often held responsible for it. Popular indiffer- 
ence to state government, due to ignorance of the impor- 
tance of state duties, also plays some part. But hidden 
though the sources of the evil may be, the results of popu- 
lar distrust in the legislatures are made plain in the general 
tendency to consider the law-making bodies a necessary 
evil. Many important duties have been given to the con- 



Cooley, 
Const' I Limi' 
tations, 
103-106. 



Similarity to 
those of Con- 
gress. 

Cf. ^ 272- 
275, 292. 



It is claimed 
that 



legislators 
are incom- 
petent 

Bryce, 373- 
378. 

a.Si\so,ibid., 
379-386. 

Cf. Roose- 
velt, Amer. 
Ideals, 119- 
125. 



356 



The American Federal State 



and corrupt. 

Roosevelt, 
ibid., 125- 
14a. 



Senatorial 
elections and 
legislation. 

Ill-advised 
and ill-di- 
gested laws. 



Decentraliza- 
tion of the 
administra- 
tion. 

Bryce, 367- 
370 (disad- 
vantages). 



stitutional conventions, the sessions have been made less 
frequent and are required to be short, and a constantly in- 
creasing field of legislation is being denied them. 

(2) Charges of corruption are by no means unknown; the 
influence of lobbyists, especially through the use of money 
being considered more potent than public opinion in so 
many cases. On account of the necessity of making laws 
affecting corporations, the legislatures are exposed to great 
temptations, which they may not be able to resist. 

(3) Though they have such important duties to perform 
for the state, the members are often chosen on account of 
personal preferences for senatorial candidates. 

(4) Changes in the laws are made more frequently than 
the conditions demand, i.e. there is too much legislation. 
The whole sphere of state activity is of such a character 
that any change in the law interferes with many business or 
other operations. But instead of being sure that every 
change means improvement, the legislatures are constantly 
amending the statutes when the alteration does more harm 
than good. 

Fortunately, all of these criticisms do not apply to any 
one of our state legislatures. Of some legislatures no one 
of them is true. Certain it is that they are due quite as 
much to popular apathy as to any defect inherent in the 
state government. 

430. The Executive. — The execution of commonwealth 
law is left to officials, central and local, very few of whom 
are under the charge of a single individual or responsible 
to one person. In other words, the administration of state 
law is very much decentralized. The chief executive 
official is the governor, who is aided by colleagues, either 
elected by the people or by the legislature, and in either 
case not responsible to the governor. There are often state 
boards of education, health, police, railroads, equaliza- 
tion, etc., sometimes under the control of the governor, 
but more often responsible to the legislature. Most of the 
actual execution and administration of law is done by the 



The States: Constitutions and Governments 357 

county, town, and municipal officers, who are chosen in 
these local districts and, as a rule, are not even subject to 
supervision by the state executive, 

431. The Powers of the Governor. — It will readily be Comparison 
appreciated that the governor of the commonwealth is of governor 
a very different person from the President of the United ^ent. 
States. As shown in chapter XIV, the latter is very power- 
ful and is the real executive head of the United States 
government, because the officials who administer the na- 
tional laws are directly responsible to him ; whereas the 
governor is only nominally the chief executive of his state, 
since he is obliged to share his powers with so many state 
and local officials, some of whom may, however, in the not 
distant future be brought under the control of the governor 
for the sake of executive efficiency. 

Yet the governor is by no means an insignificant person- Supervisory, 
age. He has general oversight, if not control, of the state appointive, 

° ° ° ' ' military, and 

executive officials and boards. He has some power of legislative 

appointment and some, though less, of removal. He has powers. 

pretty full power to grant reprieves and pardons. He is Wilson, The 

commander-in-chief of the state military forces — the ^{°'^^' 

•' jj 1183-1194. 

militia — except when they are called out by the Presi- 
dent, and may put down riots, insurrections, and disorder ^^^' ^^~ 

of all kinds. If the state is actually invaded, he may raise 

T ., , T^ . 1 , , , Cooley, 

an army. Like the President, he sends a message to the consfi Limi- 
legislature at the beginning of each session. If the houses tations, 
fail to agree, he may adjourn them, in most states, and ^ '^ ^' 
call special sessions when necessary, either with or without 9,°°*^"°!^ 
requests from legislators. By far the most important power ministrative 
is that of vetoing bills. Only three states, Rhode Island, ■^'^^> ^' 
Ohio, and North Carolina, withhold this from their gov- 
ernors; although Vermont, Connecticut, New Jersey, and 
Indiana require no greater vote to pass a bill the second 
than the first time. The governor usually has ten days, 
excluding Sundays and holidays, in which to sign a meas- 
ure, and in many states has the pocket veto. In nearly 
one-half of the states he may veto particular items in appro- 



358 



The American Fedei'al State 



Executive 
councils. 



The gov- 
ernor's col- 
leagues. 

Wilson, The 

State, 

§§ 1195-1208. 



priation bills. His legislative powers are, therefore, of no 
inconsiderable value. 

In Maine, Vermont, and Massachusetts the governor 
shares his powers with the executive council, though the two 
together usually have some duties given in other states to 
separate boards and heads of departments. 

432. Central Executive Officials. — In all of the com- 
monwealths there are secretaries of state who look after the 
state seal, the records of the legislature and to other de- 
partments, take charge of election returns, and, in general, 
act as state clerks. All also have treasurers, who have the 
keeping of the funds raised by the legislature, paying them 
out on demands made out by the auditor or controller, and 
reporting to the legislature. They are of course under 
heavy bond to faithfully perform these duties. The con- 
trollers have a general supervision of the finances of the 
state, and recommend to the legislatures the amount of 
money needed for various objects, to which the legisla- 
tures, on the whole, pay less attention than Congress to 
similar estimates of the national Secretary of the Treasury 
(§ 295). They may have some power to audit the accounts 
of the local officials who use a portion of the state's money, 
and can possibly have some influence over the tax system 
in use. The attorney -generals are the legal advisors of the 
legislature and other state officials, and in that capacity may 
be aided by the state supreme court. Whenever the state 
has business in the courts, the attorney-general or his as- 
sistants represent it, or act as public prosecutors. Other 
officials, at times elected, but usually appointed, are the 
superintendent of schools, the state engineer and surveyor, 
and the superintendent of public works. The first of these 
is the head of the public schools of the state and has gen- 
eral supervision, usually under a state board of education. 
Where, as in a few states, he has power to hear com- 
plaints and remove unsatisfactory local superintendents, 
he wields an immense influence. The importance of 
the other positions depends largely upon the extent to 



The States: Constitutions and Governments 359 

which canals, irrigating systems, and public buildings are 
necessary. 

In charge of various departments are superintendents, state admin- 
boards, or both, chosen by legislatures or by the governors i^trative 
., ., , ,, ,,-, boards. 

With or without the consent of the senate. Most of these 

have done little because not clothed with sufficient power, 
but there is every indication that in a few decades they 
will be able to supervise or control or actually administer 
many matters now entirely attended to by local officials. 
Among these are the departments of agriculture, chiefly 
taken up with stock inspection; of health; of education 
(§§ 445-450); of labor, concerned with gathering statistics 
and recommending reform; sand of railroads (§§ 612, 614). 
The state boards of charities and correction have duties 
of the first importance (§§ 458-462, 483-486), though many 
things that would naturally fall to them are still assigned to 
separate boards. 

433. Terms and Qualifications of Executive Officials. — Elections 
The governors, secretaries of state, controllers, and other and require- 

mctits 

elected officials are chosen by the electors of the whole 
state for terms usually of two or four years, occasionally Stimson, 
for one or three years. Almost all the states prescribe cer- uu Law, i, 
tain minimum qualifications, the most severe of which ^^ ^°^' ^°3. 
apply to the governor and the lieutenant-governor. They 
cover citizenship, age, and residence in the state, always 
for these two and ordinarily for the treasurer, attorney- 
general, and the others. In a few of the commonwealths 
these and all other state or local officials are debarred from 
holding office if they ever fought a duel; and once in a 
<vhile we run across a provision like that of North Carolina, 
vvhere persons denying "the being of Almighty God" are 
also disqualified. All of these central executive officials 
are removable either by a two-thirds vote of the legislature 
or by impeachment by the lower house and trial in the 
senate. 

434. The State Judiciary. — Very few of the cases that ofstate^' 
come up for trial or adjudication within the United States courts. 



36o 



The American Federal State 



Cooley, 
Const' I Limi- 
tations, 206, 
209, and 
chap. IV. 



System com- 
monly used. 

Wilson, The 

State, 

§§ 1147-1167. 

Stimson, 
Amer. Stat- 
ute Law, I, 
p. 114 
(table). 



Special 
courts. 



are decided by national courts. The vast majority are not 
only begun in state courts, but are decided by them with- 
out appeal to the United States tribunal. Unless a case 
involves national law, or for other reasons comes within the 
jurisdiction of the national courts, the final decision 
always rests with the proper court in the state, and is 
never carried beyond the highest state court. The impor- 
tance of the work performed by the commonwealth judi- 
ciary is therefore evident, and the need of capable and 
enlightened judges fully informed concerning the inter- 
pretation of law in all the states is readily seen. 

435. State Courts. — It is impossible to describe a sys- 
tem of courts which would apply to all of the states, but the 
systems tend to approach a certain type. There is always 
a highest state court, usually called supreme, the judges of 
which represent the whole state, i.e. there is but one court. 
It always has appellate jurisdiction from the court next 
lower, and sometimes has original jurisdiction in a very 
few cases. Its decision is final on all points connected 
with state law. Below this court are those usually called 
circuit, district, or superior, which are equal in number 
to districts into which the state is divided. These districts 
may be as small as the counties, or each may comprise 
many counties. The courts have both original and appel- 
late jurisdiction. If the district is large, there are county 
courts in addition. The lowest courts for the rural sec- 
tions are those usually held by the justices of the peace, 
and for the cities are the municipal courts. They have of 
course only original jurisdiction covering, however, minor 
civil and criminal cases. 

Besides these courts there may be special ones for the 
consideration of equity cases, although in most states cases 
in equity are decided by some of the regular courts, and in 
several states any court may have jurisdiction over equity 
the same as law cases. Some states have additional courts 
which look after wills and similar matters, and are called 
probate courts. 



The States: Constitutions and Governments 361 

436. Selection of Judges. — Attention was called (§ 185) Appointment 
to the fact that a hundred years ago all judges were ap- ^^ election, 
pointed by the central government of the states. While Bryce, 
popular election is quite prevalent, it has never entirely 349-351- 
supplanted the older custom. In a very few of the Eastern ^',""^°°' 

'^^ ■' statute Law, 

or Southern states none of the judges are elected. In i, 560. 
Delaware all are appointed by the governor, and in three Appendix G, 
of the New England states by the governor and council. Table ill. 
Many of the higher judges are appointed by the legislatures. 
Most of the inferior judicial officials are elected by the 
people of the district over which they preside, but in seven 
states bordering on the Atlantic the justices of the peace 
are still appointed by the governor. 

437. Judges : Term and Qualification. — As a rule, the Term de- 
term of office depends on the position of the court in the posjtfon^of" 
state system, the higher judges being chosen for a longer the court, 
term than the lower ones. The justices of the peace usu- stimson, 
ally hold office for two or four years, the circuit judges statute Law, 
for four or six years, and the supreme judges average from ^^* ^ ^' 
eight to ten years. With notable exceptions the terms are 

longer in the older states. 

Requirements are sometimes made that judges shall be 
of a certain minimum age, and have been citizens and 
residents for a definite period. There are no property 
qualifications, but often tests of legal fitness. 



QUESTIONS AND REFERENCES 
The ConBtitutiona (§§ 408, 409) 

1. Are there at present any evidences of state sovereignty ? If so, 
name a few. 

2. What are the main differences between a state of the American 
Union and one of the Australian federation ? between a state and a 
province of British America ? 

3. Is it true that the South has made less political progress than 
other sections settled at the same time ? (Consult Hinsdale, p. 259, 
Appendices E, F, G.) 



362 The American Federal State 

i. What proportion of the population of the United States is foreign 
born ? of foreign parentage ? Of the native born, what proportion 
still reside in the state of nativity ? Answer all of these questions for 
your own state. From what other state did the largest proportion of 
the people in yours come ? Compare your state with that one in regard 
to laws and institutions in general and in regard to the subjects con- 
sidered below in particular. (United Stales Census Reports.) 



The Constitutions (§§ 410-416) 

a. For the work of some of the latest constitutional conventions see 
Thorpe, " Recent Constitution -making in the United States," in A. A, A., 
II (1891), 145 et seq. (North Dakota, South Dakota, Montana, and 
Washington) ; R. of R., on " A New Constitution for New York," IX 
(1894), 290-295. 

1. Does popular cooperation in the making of constitutions or their 
amendments result in better constitutions ? What are the advantages 
and disadvantages of popular ratification ? 

2. Will the constitutions, in all probability, become briefer or fuller ? 
If the present fulness is a defect, how can it be avoided ? Would you 
advocate making amendment more difficult, for example, half as much 
so as that of the United States Constitution ? (Cf. Oberholtzer, Ref- 
erendum, 94-96,) 

3. Indicate what subjects, if any, you would drop from the present 
Constitution, or in what way the articles referring to these subjects 
should be altered. 

(For answers to i-ii consult Appendix E,) 

i. What sections or states adopted popular ratification the earliest ? 
What section clung to the old method the longest ? Which state has 
adopted the most constitutions ? Which ones never had but one 
each ? 

ii. Where does the method of requiring sanction of two successive 
legislatures to amendments principally prevail ? Is that method older 
or more modern than the two-thirds vote ? Prove from Appendix E, 
Table II. How many state constitutions require that a new constitu- 
tion shall be submitted to popular vote ? Are these states principally 
in the East, South, or West ? 

iii. What states have apparently the shortest constitutions ? What 
ones the longest ones ? Does the statement hold good that " the 
earlier constitutions were brief — those adopted later not only cover 
more subjects, but treat each one at greater length" ? 



The States: Constitutions and Governments 363 

(For answers to iv-vi use your state constitution and state history.) 

iv. How many constitutions has your state adopted, and in what 
years ? Which ones, if any, were declared in force without popular 
ratification ? What, was the popular vote on each ? Have any pro- 
posed constitutions ever been rejected ? 

V. How is your constitution amended ? Are there any limitations 
upon the number of amendments proposed at one time or the fre- 
quency of amendment ? How many amendments have been adopted 
for the present constitution ? To what do they refer ? Learn, if 
possible, how many have been proposed during the last ten years, 
and how many of them failed to be ratified. If you can, get the 
vote on those last submitted, and find out why they were accepted or 
rejected. 

vi. Make a list of the important statutes in your constitution. Read 
over each one carefully. Do you believe it would be better to remove 
any or all ? 

The Legislatures (§§ 417-429) 

a. Different views of the state legislatures are presented by Story, 
"The American Legislature," in Amer. Law R., XXVIII, 683-708; 
Bridgman, " Legislatures : a Defence and a Criticism," Amer. Jol. 
Pol,,Y, 598 et seq.; Roosevelt, "Phases of State Legislation," "The 
Albany Legislature," in Century (Jan. 1885); F. C. Lowell, "Legisla- 
tive Shortcomings," At. Mo., LXXIX (1897), 366-377 ; Bradford, 
"Reform of State Government," in A. A. A., IV (1894), 838 et 
seq. 

1. What is the difference in power, influence, and public confidence 
between the legislature of one hundred years ago and that of to-day ? 
Account, as satisfactorily as possible, for the change. 

2. Why are better men selected for constitutional conventions than 
for legislatures ? Is there any way of procuring just as good men for 
the legislatures ? If not, why not ? If so, how ? 

3. What is the most satisfactory way of electing state senators? 
Do you advocate residence as an absolutely necessary qualification of 
legislators ? Do you believe better results would be obtained to choose 
members of the lower house from large districts on a general ticket, 
with proportional representation ? 

4. Criticise carefully the defects mentioned in § 429. Which one 
has had most to do with the deterioration of the legislatures ? Does 
any other besides those mentioned appeal to you as worthy of con- 
sideration ? 



364 The American Federal State 

(On i-ii consult Appendix G, Table II.) 

i. Where are the states that hold annual sessions ? Have any of 
these limitations upon the length of the sessions ? Do they pay an- 
nual or per diem salaries ? Are their legislatures large or small ? 
What is the most recent constitution that provides for yearly sessions ? 

ii. What is the favorite ratio of membership in the two houses ? 
Do the states with large houses have short terms or vice versa ? How 
many states do not limit the length of the legislative session ? How 
many of these are west of the Mississippi River ? 

(On iii-vi consult your state constitution, political code, state official 
register, etc.) 

iii. For each house of your legislature give membership, term, 
qualifications, and salary of members, how often and in what ways 
districts are reapportioned, 

iv. When are the elections held ? When does the legislature 
meet ? Are there any limitations upon length of sessions or time 
after which no bills may be introduced ? If so, what ? How many 
constitute a quorum ? What vote is necessary to pass a bill the first 
time ? over the governor's veto ? 

V. What are the general powers of each house ? How do they 
compare with those of the United States Senate and House of Rep- 
resentatives ? Which of the legislative regulations mentioned in 
§ 421 apply to your state ? What legislative power is the legislature 
expressly forbidden to exercise by the constitution ? Give the most 
important limitations upon special legislation ; upon legislative pro- 
cedure; upon the use of money. 

vi. In what senatorial and assembly districts do you live ? How 
do they compare with other districts in your vicinity in population ? 
in area ? Who are your present representatives in the legislature ? 
How long have they served in that capacity ? What is the political 
complexion of the legislature ? 

vii. Learn, if possible, what important laws were made at the last 
session of the legislature concerning cities, especially the one nearest 
to you ; affecting local rural government ; changing the punishment 
for any crime; other subjects. 



The Executive (§§ 430-433) 

I. Give the chief advantages and disadvantages of executive de- 
centralization in the states. What officials besides the governor or 
boards have the most power ? 



The States: Constitzitions and Governments 365 

2. Account for the greater number of qualifications for governors 
now than in 1780. 

3. What is a majority? a plurality? Is it better to require a majority 
vote for election of governor ? Give reasons in full for your answer. 

i. How many states elect the governors for one year ? for two ? 
for three ? for four ? In how many is the governor not eligible for 
the next term? What state has the lowest qualifications? the highest? 
Are they uniform or not on the whole ? (Appendix G, Table III.) 

ii. Is there a lieutenant-governor in your state ? What are his 
qualifications ? What other elected officials have you ? What officials 
mentioned in § 432 are chosen by your legislature ? appointed by the 
governor ? Name the boards elected by the people ; the chief ones 
chosen by the legislature or governor. Are their terms long or short 
as a rule ? (Constitution and Register.) 

iii. Does your governor have power to call or adjourn the legis- 
lature ? What other legislative powers has he ? Who exercises the 
right to pardon in your state ? (Constitution.) 

iv. When was the last gubernatorial election ? Who were the 
principal candidates ? Who was elected ? By what plurality ? WTiat 
acts of special merit or demerit has he performed since taking office ? 
Who is your secretary of state ? your controller ? your attorney- 
general ? 

The Judiciary (§§ 434-437) 

I. Enumerate the chief merits and defects of popular election for 
Hidges ; of long terms ; of short terms. 

i. Which section of the United States is most favorable to popular 
election of judges? to election by the legislature? to appointment by 
the executive? Where are the terms longest? shortest? How many 
of the courts have over five members each ? (Appendix G, Table III.) 

ii. How many grades of courts in your state? How many judges 
in the highest court ? How are they selected, and for what term ? 
What salary do they get ? Can they hold court separately? Over what 
classes of cases have they jurisdiction ? (Constitution or Civil Code.) 

iii. Are there courts between the highest and the county courts ? 
What are they called ? How many are there ? How many judges in 
each ? Answer questions in ii for these and all lower courts. 

iv. Where does the highest court hold its sessions ? At what time 
or times ? Name at least one judge. Name all the courts held at any 
time in your city or in the largest city near you. Do all of the judges 
belong to the same party ? Has any attempt been made to make the 
bench nonpartisan ? 



CHAPTER XIX 

SOME PHASES OF STATE ACTIVITY 
General References 

Willoughby, " State Activities and Politics," in A. H. A., Volume V 
(1891). 

Whitten, Trend of Legislation in the United States. The best sum- 
mary of the work actually done during the last quarter century. 

Whitten, Public Administration in Massachusetts : the Relation of 
Central to Local Activity. Covers the most important subjects 
very succinctly for this state. 

Fairlie, The Centralization of Administration in New York State. 
Shows increased state activity in education, charities and cor- 
rection, public health, and taxation. 

Hinsdale, The American Government, chap. LVI, on " State Edu- 
cation." An excellent summary. 

Boone, Education in the United States, especially 79-116. A satisfac- 
tory brief account for reference. 

Draper, "Educational Organization and Administration," in Butler's 
Education in the United States,!, 1-31. A good general description. 

United States Commissioner of Education. Report for 1893-1894, 
pp. 1063-1300. Digest of public school laws relating to adminis- 
tration, etc. 

Wines and Koren, The Liquor Problem. Considers the different sys- 
tems of liquor control. Based upon careful observation. 

Sites, The Centralization of Liquor Administration in the United States, 

Wines, E. C, The State of Prisons, 87-216. Treats the system used 
in the different states. 

Wines, F. H., Punishment and Reformation. Largely historical. 

Periodical indexes under titles Administration, Marriage, Divorce, 
Corporations, License, Prohibition, Local Option, Education, 
Schools, Teaching, Punishment, Debt, Reformation, etc. 

Disadvan- 438. Uniformity and Diversity of State Laws. — Mentioij 

tages of ^^g jjiade in the last chapter of the uniformities and diversi- 

diversity. 

ties in state law, and attention was called to the fact that 

366 



Some Phases of State Activity 367 

while the general principles of legislation were alike every- Cooiey, 
where, there also existed very great differences in details. Const'i Law, 

184—190. 

Where these differences deal with permanent personal rela- „,., 

, . , , Wilson, The 

lions, or industrial operations of magnitude, they may cause state, 

considerable confusion or lead to objectionable results. §§1108-1114. 

439. Marriage and Divorce. — Anything that tends to Desirability 

weaken family ties is a menace to the welfare of the nation, of uniform 

... . divorce laws. 

The opportunities given by differences in state law to enter 
into the marriage bond without due legal precautions, or , ^n!^"^ a 
to break off those bonds for trivial reasons, are therefore v., 829 etseg. 
deplorable. Our laws, particularly for divorce, are no 
more stringent than they should be, providing for separa- 
tion upon numerous pretexts and are, as a rule, leniently 
applied by the courts. This is bad enough, but what has 
proved much worse is the possibility of evading even these 
regulations by acquiring a nominal residence in some other 
state, where the laws are still more lax and the judges less 
particular. The distance from the place where the other 
party lives makes it difficult for the latter to answer the com- 
plaint if, in fact, aware that one has been made. While 
there has been some improvement of late years, these prac- 
tices have undoubtedly influenced the more stable states, 
and not for the better. All of these things have given us 
an unpleasant notoriety abroad, and have produced a wide- 
spread demand for a national divorce law. 

Much the same statements may be made about the mar- Diversities in 
riage laws. The ages of consent vary greatly from one "carriage 
state to another. Some require licenses that are often- 
times real safeguards. The greatest danger arises from the 
evasion of law by moving to a neighboring state, where 
restrictions are few. As all but three states admit the 
legality of such marriages when the parties return to their 
own home, the extent of the evil may be appreciated. 

South Carolina is the only state that has no divorce laws. 

440. Control of Corporations. — A disadvantage very im- state regula- 
portant, but of an entirely different kind, though due to ^lon faulty. 



368 



The American Federal State 



Smith, in 
Amer. fol. 
Soc, XIX, 
132 et seq. 



Lack of uni- 
form laws 
and admin- 
istration 
favors crime. 



lack of uniform legislation, affects corporations. No cor- 
poration can do business without gaining permission from 
the authorities of some state and complying with the state 
corporation law. Having done this, it proceeds to do busi- 
ness in that state and in others, usually without reincorpora- 
tion in the latter. This does not mean that the corporation 
is necessarily free from control in the other states, but that, 
as a matter of fact, the one state where it was organized 
has checks upon it and its management which the others 
cannot easily obtain. It will readily be seen that corpora- 
tions will gravitate toward the states that favor them, for 
some states are glad to attract them on almost any terms. 
Consequently, there is likely to be a loosening of govern- 
ment control all along the line, as no state can afford to 
lose so much business. The same thing is true about the 
taxation of corporations as with their control. Corpora- 
tions will shun the commonwealth that levies a heavy tax 
upon their stock or franchise, and go to one where they pay 
only on their visible property. If that happens very fre- 
quently, it is ruinous alike to a proper system of state finance 
and a suitable regulation of corporations. 

441. Criminal Legislation. — Considerable variety in the 
laws regarding crime is noticeable from state to state. This 
is true not alone because the definitions of crimes are unlike, 
but on account of the differences in the punishment meted 
out. For example, five states have abolished the death 
penalty for murder. In one state an offence may be merely 
a misdemeanor punishable by imprisonment for a short 
time; in an adjoining one it may be considered a felony, 
conviction for which means from ten to twenty years of 
hard labor. These inequalities tend to draw hardened 
characters to places where the laws are lenient and produce 
more law-breaking than would naturally result under uniform 
laws. 

442. Lack of Uniformity an Apparent rather than a Real 
Evil. — The more we study the real differences that exist 
between the laws in force in various states, the more we are 



Some Phases of State Activity 369 

impressed with the belief that the difference is not so much Differences 
in the statutes themselves as in the interpretation. Take !" ^^""in- 
the subject of divorce, in relation to which the need of a would exist 
single law is most generally recognized. The state laws i" different 
are much more alike than would at first seem possible, and the same law 
those who have given most attention to the question assert 
that the ease with which the marriage bond is severed in 
some of the newer states is due far more to the independent 
position of woman and the lack of disapproval among the 
majority of the citizens than to the leniency of the law. 
Since the public sentiment of any community determines, 
to a very large degree, the way in which state law is inter- 
preted and applied (except where official action is princi- 
pally influenced by selfishness or corruption) the evils which 
have arisen from an increase in the number of divorces 
ought not to be charged to the variations in state legisla- 
tion, but to the differing standards of public morality in 
various sections. So far as the lax methods of some states 
have permitted husband or wife to evade the law of their 
own home, or have made the courts in the older states less 
strict in reference to divorce cases, diverse laws have done 
great harm; but if a national divorce law would inevitably 
be followed by the same interpretation in Massachusetts 
and in California, it might not have so favorable an effect as 
desired. In other words, our divorce laws do not seem to 
differ so much as the views held regarding divorce in dif- 
ferent parts of the nation; and if the laxity of judicial in- 
terpretation in the West merely reflects, on the whole, the 
popular feeling, a stricter interpretation of the law would 
not remedy the evil. 

443. Means of producing Greater Uniformity. — Were interstate 
there no possible way to reconcile any differences between *=o"'i*y' 
state laws, those that exist would occasion much greater Cooiey, 
difficulty than they do; but the United States Constitution ^^^^"''^' 
prescribes that, "Full faith and credit shall be given in 
each state to the public acts, records, and judicial proceed- 
ings of every other state." Most of the states go much 
2 B 



ties, 



370 The American Federal State 

further than this, and provide that not only public acts, 
but individual ones under the law of another state shall be 
accepted and judged by the law of that commonwealth. 
E.g. if a man makes a contract in one state and moves to 
another, even though the laws of the second might release 
him from performing that after a certain time, he is bound 
still by the law under which it was made, so that differences 
in state law never release him from his obligations. Again, 
if a person dying in Colorado held property also in New 
York, his will if approved by the Colorado court will also 
be accepted by that of New York, even though the evidence 
would have been insufficient to prove it in the Eastern 
state. On the whole, the acceptance by New York, though 
perhaps open to objection in some respects, was far less 
objectionable than the rejection of the will. 
Vast extent 444- Uniformity in State Law. — Yet we must not under- 
of uniformi- estimate the degree of uniformity that covers almost every 
subject. The clearest idea of the extent to which state 
laws are alike can be given by quoting from Professor 
Woodrow Wilson, The State (§ 1114): — 

"Unquestionably there is vastly more uniformity than 
diversity. All the states have built up their law upon the 
ancient and common foundation of the Common Law of 
England, the new states borrowing their legislation in 
great part from the old. Nothing could afford clearer evi- 
dence of this than the freedom with which, in the courts of 
nearly every state in the Union, the decisions of the courts 
of the other states, and even the decisions of the English 
courts, are cited as suggestive or illustrative, sometimes also 
as authoritative, precedent. Everywhere, for instance, the 
laws of property rest upon the same bases of legal principle, 
and everywhere those laws have been similarly freed from 
the burdens and inequalities of the older system from which 
they have been derived. Everywhere there is the same 
facility of transfer, the same virtual abolition of all the 
feudal characteristics of tenure, the same separation between 
the property interests of man and wife, the same general 



Some Phases of State Activity 371 

rules as to liens and other claims on property, the same 
principles of tenancy, of disposition by will, of intestate 
inheritance, and of dower. Everywhere, too, contracts, 
common carriage, sales, negotiable paper, partnership, rest 
upon similar principles of practically universal recognition. 
We feel the conflicts, because we suffer under their vexa- 
tions; while we fail to realize and appreciate the uniformi- 
ties because they are normal and have come to seem matters 
of course. It must be acknowledged, moreover, that even 
within the area of irritation there are strong corrective 
forces at work, a growing moral sentiment, and a fashion 
of imitation, promising the initiation and propagation of 
reform. As the country grows socially and politically, its 
tendency is to compact, to get a common thought, and 
establish common practices. As it compacts, likenesses 
will be emphasized, diversities pared and worn away." 

445. Evolution of the Public School System. — The sub- Private 
ject of education has only within the nineteenth century schools sup- 

... planted by 

become of especial interest to our governments, as it was public ones, 
formerly left almost everywhere to private parties. The 
transition from private to public control was gradual, occur- 
ring first in the Northeast in connection with primary and 
grammar schools, but completed earliest in the Western 
states, in which private schools were never numerous. 
Later, and in fact quite recently, secondary education has 
been undertaken at public expense, the private academies 
of the past having been largely supplanted by free high 
schools. During the transition period for both grammar 
and high schools some characteristics of the private system 
were retained, the whole expense of the schools not being 
borne by the public, but each pupil paying nominal " rates " 
to cover the balance. 

In developing free schools in the West the impetus given 
by the public land grants of the United States government 
(§§ 187, 449) was of the first importance. These grants 
were for the benefit of the common schools and of state 
universities, which have been established in all of the 



372 



The American Federal State 



Education 
an affair of 
the state. 



Principles of 
state school 
law. 



Methods of 
state super- 
vision. 

Boone, 
Education in 
U.S., loi- 
109. 



States formed from the public domain {i.e. the land once 
directly controlled by Congress) and in a few others. 

446. State Systems of Education. — Except in a few 
states, the earliest public schools were organized by sepa- 
rate localities desiring them, and not by the states as a 
whole; but as the need of more satisfactory instruction and 
greater uniformity became apparent the legislatures began 
to organize regular state school systems. Very few of 
these provided at the first for any state school officers, or 
for any real uniformity in school law or administration. 
But gradually the systems have been elaborated till their 
details are all regulated by the state, though everywhere 
administered by local boards and commissioners. The 
schools are therefore, like so many other things, a phase of 
state activity largely under the direction of the localities. 

Among other things the state law determines whether the 
district, the township, or the county shall be the unit for 
school administration, and what officers it shall select, with 
the powers of each. It also prescribes a minimum list of 
subjects which every school must teach, the minimum 
school year, and the requirements of teachers of the differ- 
ent grades; but usually suitable means to enforce these 
regulations are lacking, except where the state contributes 
a large amount to the localities — which may be withheld 
for cause — or where the state board or superintendent 
is vested with considerable power. Since it is for the 
advantage of every district to have the best schools pos- 
sible, control by state authorities is less necessary than it 
would be under different conditions. 

447. The State School Board and Superintendent. — All 
but one of the states provide for some state school official, 
while most of them have state boards of education. The 
boards are almost always chosen by the governor or the leg- 
islature, but the superintendents are more frequently elected 
by the people. The duties performed by the boards may 
include the general oversight of the state system, the care 
of the state funds, and the examination of teachers, unless 



Some Phases of State Activity 



373 



that is assigned to county boards under their charge, and 
possibly the selection of the text-books, which in nine 
states are free. The board is expected to do what it can 
to improve the schools by suggesting new methods and by 
other means. The actual performance of those duties, 
besides others, is usually left to the superintendent or state 
commissioner, who is ordinarily a member of the board. 
He has, as a rule, very little power, being merely a super- 
visory official, but he may possess considerable influence. 
In addition to the subjects just mentioned, he has general 
charge of the holding of teachers' institutes and the issuance 
of certificates. In New York, and one or two other states, 
he is a real executive, with the right to hear and decide com- 
plaints and to remove teachers or commissioners for cause. 

448. Local School Administration. — The counties almost 
always have boards of education, to whom the examining 
of teachers is intrusted under state laws, and commis- 
sioners or superintendents, whose chief duty is to visit the 
schools and to distribute the state and county funds to the 
different schools. In parts of the South there are no school 
taxes raised by any political division smaller than the 
county, and many of the duties elsewhere assigned to 
trustees are there performed by the county board. 

In the rural sections, the real administration of school law 
rests with the officials chosen either by districts or by 
townships. In either case there are usually three, but often 
six or nine, trustees elected by the voters of the locality, 
who hold office for three years, and have power to select 
teachers, provide for studies in addition to those required 
by the state, raise taxes, usually, and, with the consent of 
the voters, borrow money for new buildings. The district 
system is more common than that of the township, but if 
the districts are small, it is impossible to secure careful 
supervision by local superintendents, which is one of the 
greatest aids to successful work. 

In the cities the full control of the schools belongs to a 
board of education, occasionally of five members, but often 



Draper, in 
Butler's 
Schools in 
U. S., 17-22. 



County 
ofificials and 
school 
taxes. 

Boone, ibid., 
113-116. 



District and 

township 

systems. 

Draper, in 
Butler's 
Schools in 
U.S., 7-1 1. 



City super- 
vision. 



374 



The American Federal State 



Boone, ibid., 
109-113, 

Draper, ibid., 
12-17. 

Sources of 
revenue. 

Boone, ibid., 
88-93. 



Pedagogical 
schools. 

Boone, ibid., 
125-148. 



Appointment 
of teachers. 



much larger. There is always a city superintendent, and 
usually directors for special branches. 

449. School Finances. — The public schools of the United States 
cost in the neighborhood of ;^ 200,000,000 a year, of which about 
seventy per cent is raised by local taxes upon property, twenty per 
cent by state taxes, and the rest in other ways. Among the latter is 
the interest arising from the state school fund, which in the newer 
states is made up of the proceeds from the sale of public lands donated 
by the national government, consisting of one section of each township 
in the states formed between 1802 and 1848 and of two townships to 
those admitted later. Some of the older commonwealths have similar 
funds made up in part of " land script " given them by Congress and 
of funds set aside by the legislature for the purpose. In no case, how- 
ever, does the interest from the fund cover more than a small propor- 
tion of the expense. 

In some of the Middle, Western, and Southern states the amount 
contributed by the states nearly equals or at times exceeds that collected 
in the localities. A few of these states have taken advantage of this 
distribution of money to improve the condition of the schools, particu- 
larly by withholding a county's appropriation in default of required 
improvements ; but the chief benefit of collecting money through the 
state is the help given to the poorer districts which are thus assisted in 
their support of the schools. 

450. The Preparation and Selection of Teachers. — The 

chief essential of a perfect school is not complete laws, 
careful administration, or vast expenditures, valuable as 
all of them may be, but a corps of fine teachers. Fifty 
years ago it was next to impossible to get teachers who were 
thoroughly informed or well trained, but most of the diffi- 
culties of that day have been overcome. Beginning with 
Massachusetts in 1839, the states have constructed state 
normal schools, and most of the state universities have 
established pedagogical departments. Teachers not pre- 
pared in either of these obtain certificates by examination. 
But the excellence of the teaching corps depends upon 
several things other than the preparation. Of these the 
method of selecting teachers demands brief consideration. 
Almost without exception the choice of teachers is left to 
boards of trustees or of education, often composed of strong 



Some Phases of State Activity 375 

partisans. As teachers are rarely appointed for a longer 
term than one year, there is ample opportunity for changes; 
and the new appointee, more often than should be the case, 
gets the position for personal or political reasons. Such 
changes can only be condemned, and the remedy lies in 
taking the schools out of politics and permitting the boards 
to dismiss only for a cause that satisfies the community. 

451. The Liquor Problem. — The manufacture and sale of Public inter- 
alcoholic liquors demands the constant control and super- ests involved, 
vision of state and local authorities. Intoxicants are gen- 
erally believed to be responsible for the large part of the 

poverty, vice, and crime in existence, so that control is 
primarily for public protection, rather than to develop 
public morality. But another aspect of the liquor inter- 
ests assures civic importance, and that is the part played 
by manufacturers and dealers in political affairs. No other 
business possesses as complete and as powerful an organi- 
zation, or has as much to do with the election of officials, 
state and local. Particularly in large cities party nomina- 
tions, appointments, especially on the police force, and 
certain classes of ordinances are dictated by those most 
interested in the liquor traffic. Occasionally we find that 
most of the primaries are held in the saloons, and at times 
even the election booths are located in them. The domi- 
nation of this organization, like that of great railways 
or trusts which control certain states, is always to be 
deprecated and, so far as possible, avoided. 

The question of temperance as such is a moral and not a political 
one, and only indirectly connected with state legislation and local 
administration. For that reason the following discussion deals exclu- 
sively with the liquor problem from the standpoint of government. As 
the courts have almost everywhere upheld the constitutionality of the 
most severe anti-liquor laws, the relation of regulation to personal free- 
dom is not touched upon. 

452. Systems of State Control. — The regulation of the Eliot ^2? a/., in 
liquor business usually devolves upon the cities and coun- ^^S"°^ ^°^- 
ties; but the laws thus carried out are invariably made by 



376 



The American Federal State 



Eliot, in At. the State, and may be either in the form of statutes or em- 

Mo., LXXix bodied in the constitution. There are five main systems 

(1897), 182- ■' 

187, in use, three of which are now in force in all but two states. 

The other two are the Ohio system of taxing saloons, just 

as some other kinds of business are taxed, and the South 

Carolina dispensary. The three which are much more 

common are the license system, state prohibition, and local 

option, which is a form of the license system with local 

prohibition. 

The difference between a tax and a license is that the latter is is- 
sued before a saloon may be opened, and is granted only under speci- 
fied conditions, e.g. payment of a sum of money to the government, 
petition from property holders in the vicinity, filing of a bond to ob- 
serve all saloon regulations, etc. A tax can be levied only upon places 
actually doing business, but the saloons are of course subject to all 
lavirs made for police control. 



The South 

Carolina 

system. 

Koren, in 
Liquor Prob- 
lem, 141- 
180. 



Extent of and 
tendencies in 
the license 
system. 



453. The Dispensary. — The dispensary is an innovation 
for the regulation of sale of liquor in this country, and is 
used in South Carolina and in some cities in Georgia and 
Alabama. The state creates a monopoly for the sale of all 
intoxicants, and leaves this in the hands of its ofificials. In 
South Carolina the central authority is a board composed 
of the governor, the attorney-general, and the controller. 
There is a distributing depot, located at the state capital, 
from which all the liquor consumed in the state is sent in 
sealed packages to dispensaries, established in accordance 
with law, at various points. The dispensary sells the 
unbroken packages, which are not tO be opened on the 
grounds. An efficient police, together with severe regula- 
tions, have succeeded in breaking up illegal dealing; and 
the system seems to have been, financially and otherwise, a 
fair success. 

454. The License System. — Most of the states permit 
licenses to be granted to liquor saloons upon certain con- 
ditions. Until recently the payment of the license " fee " 
was the principal one, the " fee " being moderate in 



Some Phases of State Activity 



177 



amount. But there has been a decided tendency to replace 
low with high license, to prevent the location of saloons 
near churches and schools, and to be more particular about 
the parties to whom licenses are given. More stringent 
laws have also been made relative to the daily hours of 
opening and closing side entrances and closing on Sundays, 
election days, and holidays. But all of these things have 
counted for little where public sentiment has not compelled 
at least a partial enforcement of the law, which happily has 
occurred in most places. The larger licenses have brought 
more money into the treasuries, but have increased the 
number of illegal liquor dealers, except where perfect ad- 
ministration of the law was possible. Violation of many 
of these regulations is unfortunately still the rule, particu- 
larly where the police force overlooks the law-breaking 
for a consideration or to avoid conflict with the liquor 
organization. 

455. State Prohibition. — Over one-third of the states 
have at one time or another prohibited the manufacture and 
sale of intoxicating liquors within their limits. At the 
present time, five have such laws, and in two of these, 
Maine and Vermont, the law has existed in various forms 
for fifty years. So far as manufacture is concerned, pro- 
hibition actually prohibits; but a different result is noticed 
in connection with the question of sale, and the result is 
easily summarized : where the community earnestly favors 
prohibition, public sale is impossible, while private sale is 
difificult and usually punished; where the community is 
indifferent, illegal trafific is common; but where prohibi- 
tion is distasteful, as in all cities of size, there is little 
attempt to conceal the places where drinks can be obtained. 

456. Local Option. — In about one-half of the states the 
towns, districts, or counties are permitted to decide, by 
popular vote, whether they will have license or no license. 
By this method local prohibition exists over a fair portion 
of the United States, but only in those parts where it is 
favored for personal or business reasons. It can readily be 



Eliot, in At. 
Mo., LXXIX, 
181-182. 



Results of 
" state wide " 
prohibition. 

Eliot, in At 
Mo., LXXIX, 
179-180. 

Johnston, in 
Lalor, III, 
378-380 
(historical). 



Local option 
in practice. 

Eliot, in At. 
A/b.. LXXIX, 
180, 181, 



378 



The American Federal State 



Oberholtzer, 
Referendum, 
288-294. 



Administra- 
tion more 
important 
than legisla- 
tion. 



Indirect 
influence of 
legislation. 



Barbarous 
practices 
replaced by 
reformatory 
methods. 

McMaster, 
United States, 
I, 98-102 
(Prisons, 
1784). 



seen that the enforcement of the law in these localities is 
likely to be better than those of prohibition states; but the 
difficulties of enforcement are apt to be greater because 
importations are easy. Although free from the glaring 
defects that characterize the administration of the anti- 
saloon law in states that have prohibition, local option, 
nevertheless, encounters much the same class of difficulties 
as those found under prohibition. 

457. General Results of Liquor Legislation and Control. — 
To whatever system we turn, we find that future problems 
far outnumber past solutions. But experience teaches some 
lessons of considerable value, viz. : that for the proper con- 
trol of the traffic, careful and constant administration of suit- 
able police regulations is the one thing indispensable; that 
laws which remain dead letters are not suitable; and that 
there will never be careful and proper administration in the 
midst of popular apathy. With the moral aspects pure and 
simple, we have nothing here to do; but so far as we may 
judge from experiments, the process of making people good 
by legislation is a long and painful one. 

Good, although indefinable, results are probably obtained 
from the laws made by most legislatures that instruction 
shall be given in the public schools showing the injurious 
effects of alcohol upon the human body. The principal 
methods, however, by which temperance workers seek to 
decrease the amount of intemperance by prevention and 
reform can be little affected by the attitude of the government. 

458. Punishment of Crime in the Past. — The punishment 
of crime has engaged the attention of States since civili- 
zation began, but the methods of punishment now in use 
are distinctively modern. In colonial times imprisonment 
was almost unknown, death being the penalty for the most 
serious offences, and some species of public torture, like 
the stocks or the whipping-post, being used for minor 
crimes. During the early national period there were pris- 
ons for the incarceration of criminals; but these were 
always of the worst description, the prisoners being herded 



Some Phases of State Activity 



379 



together irrespective of age, offence, and other conditions, 
while often the prisons were nothing but cellars or mines. 
The gradual introduction of state prisons and more enlight- 
ened public interest did away with the worst of these evils. 
As the world began to realize that severe and arbitrary 
methods increased rather than diminished crime, greater 
attention was paid to reforming the criminal, while schools 
for the care of neglected children or youthful offenders 
sprang up on every side. Repeated efforts have been made 
to raise the standard of the local prisons, or jails, particu- 
larly through the creation of state commissions and super- 
intendents; but, in spite of the progress made by a few 
states in some directions, the legacy of the past, with its 
attendant defects, is noticeable in some measure almost 
everywhere. 

459. The State Prisons. — Since almost all of the crime 
in the United States consists of the breaking of state 
laws, we should naturally expect that state authorities 
would control its punishment; but there seems to be noth- 
ing more hateful to the average American than a state 
police, so that practically all offenders are arrested by 
local officials, and most of them are confined in town or 
county jails. 

The state prisons are reserved for the worst classes of 
criminals, who are sentenced for the longest terms. Their 
treatment varies greatly from state to state, but the disci- 
pline is usually neither extra severe nor mild. Solitary 
confinement is rare, while premiums are placed upon good 
behavior, through systems of commutation by which the 
term of confinement may be greatly reduced. Employment 
is provided, ordinarily for the purpose of keeping the pris- 
oners busy, and incidentally for revenue. In a very few 
states the custom still persists of leasing the labor of the 
convicts to contractors, who take entire charge of them, 
paying the state a net sum for their services. The usual 
results are all that they should not be, and the only attempted 
justification of the disgraceful system is the annual profit. 



Wines, 
Pmiishment 
and Ref- 
ormatio)}, 
147-154- 



Need of a 
state police. 



Prison 
methods. 

Wines, State 
of Prisons, 
9S-IOO, 
106-113. 

Ford, Amer. 
Cits. Manual, 
112-124. 



38o 



The American Federal State 



Elmira plan. 

Wines, 

Punishment, 

320-228. 



About ten states have adopted a plan first tried in New York, and 
usually known as the Elmira plan. It applies only to persons con- 
victed of a first offence, and not over thirty years of age. The methods 
are somewhat similar to those of juvenile reformatories, to be described 
presently, but include also what is known as the indeterminate sen- 
tence. This leaves to the superintendent the right to grant parole 
or even release where he believes it will be beneficial. The whole 
scheme necessarily demands great skill in management. 



Value of re- 
form schools. 

Wines, State 
of Prisons, 
125-132. 



Defects of 

the jails. 

Wines, 

Punishment, 

313-315. 



460. The State Reformatories. — For many years state 
schools for the reform of juvenile offenders or unruly boys 
and girls have existed everywhere except at the South. 
As the name implies, they are really schools, whose chief 
aim is to make the inmates useful members of society by 
giving them some industrial training, a common school 
education, and by teaching them self-control and the rights 
of others. When properly conducted, and most of them 
may be so classed, they have rendered inestimable service 
to their respective communities in turning tens of thou- 
sands from criminal careers. Most of them take an interest 
in the graduates after they leave, seeking to keep an eye on 
them, securing good homes and steady occupations when- 
ever possible. The work of prevention performed by these 
schools, and by others for homeless children, is among the 
noblest and most practical of the many functions performed 
by the states. 

461. The Local Institutions. — When a person is sen- 
tenced for a short time he is usually sent to the county peni- 
tentiary, of which there are a great number. If awaiting 
trial, or held as witness without bail, he is confined in the 
same or in some local jail. Most of these institutions seem 
to have taken no share in the great advance movement for 
better prisons and better methods. Ordinarily they are 
unhealthful; often they are worse. No work is provided 
in most instances, neither is there any classification of 
prisoners according to age or crime. As all are thrown 
together and idleness prevails, local prisons cannot be 
said to be effective agencies in the prevention of crime. 



Some Phases of State Activity 381 

462. The Problem of Correction and Reformation. — The Conditions 
solution of present difficulties is by no means an easy one, ""favorable 

111 111 *° crime, 

and includes much more than the methods employed by our 
penal and reform institutions, valuable as any improve- 
ment in those methods may be. Modern conditions are 
both more or less favorable to crime than those of former 
times. They discourage it because there are fewer sparsely 
settled sections which afford opportunities for concealment 
of crimes and the escape of criminals; because means of 
transportation are better, and because our cities are better 
lighted. It is said that the introduction of gas in London 
a century ago did more to prevent crime on the streets 
of that city than all the harsh measures of previous years. 
More than all else, universal education has helped to give 
people clearer ideas of right and wrong, and has proved a 
spur which has kept multitudes out of the ranks of criminals. 

In the other direction several tendencies are perceptible. Conditions 
One of these is the great congestion of population in cities. fayo"°e 
The slums of our larger centres produce more recruits for 
the army that preys upon society than all reformatory and 
philanthropic efforts can reclaim. Another is the publicity 
given to wrong doing by certain classes of newspapers. 
As there is nothing which a person of criminal instincts so 
much desires as notoriety, the "education" of these jour- 
nals is all in the wrong direction. To counteract these and 
other incentives to crime, the government can do very little. 

Many good people question whether the milder penal Lynch law. 
laws and more lenient administration of to-day are effective 
in keeping down the number of criminals. They think 
that the increase in the applications of lynch law, and the 
accompanying disorder, are the outgrowth of popular dis- 
gust with the failure of the courts to punish with sufficient 
severity. To whatever cause these lynchings may be due, 
it is to be hoped that some more regular means will be 
found of administering justice to the offender. 

463. Other State Activities. — From the foregoing para- state"ac°iv- 
graphs we can gain some idea of the relation of the law of ity. 



382 



The American Federal State 



Some phases 
not consid- 
ered. 



Centraliza- 
tion of ad- 
ministration. 

Fairlie, Cent, 
of Admin- 
istration in 
N. Y., 192- 
207. 



Receipts and 
expenditures. 

Bryce, 356- 
365. 



one state to that of the others, and some conception of the 
methods used in the performance of state duties. The 
subjects treated cover a very small part of the field of 
activity of the states, but indicate, in a general way, how 
the states and the localities work together. Among other 
topics that are naturally considered phases of state activity 
are those of charity (§§ 482-486), suffrage and elections 
(chapter XXII), most of our legal rights and remedies 
(chapter XXIV), the chief problems of taxation (chapter 
XXV), and most industrial and labor questions (chapter 
XXVII). 

Some of those which are not separately treated deal with 
health, immigration, irrigation, public works, and many 
others. When we realize that almost nothing has been said 
about the private and criminal laws made by the state legis- 
lature, but that we have confined ourselves to general meth- 
ods of administration and supervision, the scope of the 
states' work is seen to be far from limited. 

464. Increase of State Activity. — A marked increase in 
the number of functions now performed by the government 
which were formerly in the hands of individuals, is seen in 
every connection with the above subjects. Two features of 
the increase are particularly prominent : one, that the state 
and local governments are all doing more, and doing it 
better, than in earlier periods; second, that the states are 
beginning to introduce central machinery to supervise or 
even control local agents, bringing about greater uniformity 
and more perfect administration. Some states have gone 
much farther than others, especially in centralizing their 
administration; but all have done something in this direc- 
tion and, from indications, will do much more. 

465. State Finance. — The work of the states does not 
call for the excessive expenditure of money that character- 
izes the national government, with its large civil and mili- 
tary list, or the cities, with their costly improvements. The 
funds needed are raised principally from the general prop- 
erty tax (§§ 587-590), partially from corporation taxes and 



Some Phases of State Activity 383 

miscellaneous sources. More is spent for education than 
for anything else, about one-third of the whole. The rest 
is divided among the state government, state charities, ref- 
ormation, etc. 



QUESTIONS AND REFERENCES 

Uniformity and Diversity in State Law (§§ 438-444) 

a. On the subject of divorce in general, see Wright, Practical Soci- 
ology, 159-176; Woolsey, Divorce and Divorce Legislation, chap. V.; 
Wilcox, The Divorce Problem. Arguments for and against a national 
divorce law are given by Stewart, G. A., in Popular Science Monthly, 
XXIII (1883), 224-237, and by Phelps, E. J., in Forum, VIII (1889), 
349-364. 

1. Is it preferable to bring about necessary uniformities in law by 
interstate codes or by transferring the subject from the state to the 
nation ? 

2. Can the difficulties in the regulation of corporations be met by 
each state for itself by the adoption of suitable laws ? Would a 
national law supplementing those of the states requiring " interstate " 
corporations to fulfil certain requirements in all of the states be of any 
value ? 

3. Why might a national divorce law uniformly applied " not have 
so favorable a result as desired " ? 

4. If the various localities in the state maintain their local " self- 
government," largely by being able to administer state laws loosely 
or literally (§ 469), is it not desirable to have as great diversities in 
state law as at present ? Could national laws on these subjects, ad- 
ministered as national laws are now, be adapted to differing local 
conditions ? 

i. What are the lowest ages of consent for persons desiring to 
marry ? Do many states have such paltry requirements ? What is 
ihe highest age of consent for boys ? for girls ? How many states 
demand the consent of parents for children not of legal age ? What 
proportion ask for no license ? (Tribune Almanac.) 

ii. What states do not require previous residence for persons de- 
siring divorce ? What is the longest residence required by any state ? 
Do most permit the parties to remarry ? If so, at once ? (Tribune 
Almanac.) 



384 The American Federal State 



The Public Schools (§§ 445-450) 

1. Why should schools be supported by the public and not par- 
tially by the public and partially by those benefited ? 

2. Name the benefits gained by having teachers examined by the 
state board of education; by the county board; by the school trus- 
tees. Give objections to each. 

i. How is your state superintendent chosen ? For what term ? 
What powers has he ? Give his name, and tell what school work he 
did before appointment to the position. 

ii. Have you a state board of education ? If so, of how many 
members ? How selected ? Does the method of choice guarantee 
men of the highest capacity ? 

iii. Does the county, township, or district system prevail in your 
state ? What county officials have you ? Do they give examinations ? 
Have any of them ever visited your school ? 

iv. How many members are there on your school board ? For how 
long are they elected ? Do all go out of office at the same time ? Is 
it the custom to reelect these officials ? 

V. What proportion of your school fund is collected by the local- 
ity? by the county? by the state? Is any attempt made to relieve the 
poorer sections ? To raise the standard of the schools in distributing 
the money ? 

The Liquor Problem (§§ 451-457) 

a. Different views of the success of prohibition are given by Dow, 
N., in Forum, III (1887), 39-49; Patten, S. N., in A. A. A., II 
(1890), 59 et seq,; Koren, in Liquor Problem, on "Maine," 22-95; 
Wines, in Liquor Problem, on " Iowa," 96-140. 

1. What classes of men are individualists (§ 27) when the control 
of the sale of liquor is being considered ? Has the constitutionality 
of " state-wide " prohibition been upheld by the courts ? Is prohibi- 
tion an infringement of personal liberty ? Give reasons for your last 
answer. 

2. Which system of liquor control do you particularly favor, and on 
what grounds ? Under license, what regulations are most essential 
in preserving law and order ? 

i. Has your state ever tried prohibition ? For how long ? With 
what success ? What other systems have you tried ? 

ii. Have you high or low license now ? With or without local 
option ? Judging from the experience of your locality, what provi- 



Some Phases of State Activity 385 

sions of law are most essential ? With what success is your law 
administered ? 



Punishment and Reformation (§§ 458-465) 

1. Compare the number of capital crimes and methods of punish- 
ment for others in England (1600), Massachusetts (1650), the United 
States (1780), the United States (1830), and the United States now. 

2. Trace the history of punishment for debt during the past two 
centuries, noticing former methods, abolition of imprisonment, and 
growth of homestead exemptions, and specifying in regard to the 
latter at the present. 

• 3, What is the connection between the development of democracy 
and the substitution of mild for severe forms of punishment, and why 
should there be any connection ? Has democracy had anything to do 
with the introduction of reformatory instead of repressive methods ? 



2C 



Almost all 
laws are 
made by the 
legislature. 



CHAPTER XX 

TOWN AND COUNTY GOVERNMENT 

General References 

Wilson, The State, §§ 1209-1259. 

Fiske, Civil Government, 16-98. Deals chiefly with origins. 

Macy, Civil Government, 36-1 14. The four types, 

Goodnow, Coinparative Administrative Law, I, 178-192. 

Ford, W. C., American Citizen^s Manual, 53-84. 

Bemis, "Local Government in Michigan and the Northwest," in 

/. H. U. S., I, V. 
Bemis (ed.), "Local Government in the South and Southwest," in 

/. H. U. S., XI, xi, xii. 
Shaw, Ingle, and others, on particular states, in /. H. U. S. 
Howard, Local Constitutional History in the United States, especially 

438-470. The highest authority on the subject. 
International Congress of Charities, Report on The Organization of 

Charities (1893), 43-134- 
Warner, American Charities. Discusses fully private and public 

methods and the relation of private to public work. 

466. Legislative Centralization of the State. — The posi- 
tion of the localities in the states is a peculiar one, because, 
while they are theoretically mere subdivisions of the state 
for purposes of government, in reality a large part of the 
states' work is done through their officials. We may 
express the relation of the states to the localities very 
briefly by saying that the legislative power of the state 
is very highly centralized; while the administrative power 
is just as highly decentralized. Now this statement re- 
quires a little explanation. How is the legislative power 
centralized? In this way. Practically all of the laws 
(national laws not being considered) under which we 
, 386 



Town and County Government 387 

live are made by the state legislature, most of the remainder 
being framed by the constitutional convention which, as 
we noticed (§ 422), has quite a little to do with the laws 
of most importance. Take the single subject of education. 
We have just seen that the state prescribes the form and 
powers of the school organization, i.e. whether the county, 
district, or town has charge of the schools, how many com- 
missioners are chosen in each, what the minimum length 
of the school year is, what rights these localities have to 
raise money for the support of the schools, and a great 
many other details. The school trustees or the county 
board may make some supplementary regulations, but a 
casual examination of the state school law will show you 
that the state legislates for the schools. 

467. Administrative Decentralization. — We would natu- There are 
rally suppose that if the state makes the laws, the state will ^^7 ^.*^-*^ 

administra- 

also execute them; but this is not done. Almost all the tive officials 
laws of the state are carried out, in other words are admin- 
istered by local officials over whom the state has no control 
whatever. Even the judges of the lower state courts, who 
deal with state laws almost exclusively, are elected by the 
voters of counties or districts, and are responsible not to 
any central authority, but to the voters of that territory, at 
the next election. If it is really desired to have the law 
uniformly interpreted throughout the commonwealth, what 
guarantee have we for those laws involved in suits that are 
not appealed to a single state court? The same freedom 
from control marks the sheriffs, local health ofiEicers, in 
fact, all officials for the localities. The bulk of their 
duties may relate to state law, but they may interpret that 
law to suit the voters of their district. They administer 
it or they neglect it in the same way; and so long as their 
"constituents" do not object, the state authorities cannot 
force them to do it uniformly throughout the state, as we 
observed in connection with anti-liquor legislation. Per- 
haps we can see the effects of administrative decentraliza- 
tion in a truer light by the use of an illustration. Suppose 



3^^ ^^^ American Federal State 

that the tariff acts passed by Congress were administered 
by local ofiEicials not responsible to the President. Let us 
assume that the tax collectors of the various ports of entry 
have charge of assessing and collecting the duties upon 
goods imported. Now, if the President cannot compel a 
collector to do his duty except by bringing him before a 
court for some offence recognized by law, we can readily 
see that one collector will be more lax than another, and 
confusion will follow; but the greatest loss will be to the 
national government, which will have been deprived of 
much of its power, because it could not properly control 
its administrative agents. To the national government this 
would be an irreparable injury, because its legislative power 
is strictly limited, and it would tend to degenerate into a 
government like that under the Confederation, in fact, 
would never have been able to lift itself out of its degraded 
condition during that period if its other laws had been 
executed in the same way. 
Local gov- 468. How the Dangers of Administrative Decentralization 

eminent may have been avoided. — Why, then, has the state not suffered 
or abolished ^^ ^ similar manner? For very obvious reasons, (i) The 
by the state, state (perhaps through the legislature, but usually in the 
constitution) creates the local political divisions and endows 
them with certain powers and rights. It may abolish them 
or change the methods of administration any time it pleases, 
in fact, its control over the localities is as absolute as that 
exercised by any political power in existence. If the state, 
that is, the people of the state, felt that administrative 
decentralization interfered with its work to such an extent 
that its power was being nullified, it could substitute another 
kind of administration for that in use. But the failure of 
the state to make such a change is evidence that adminis- 
trative decentralization has not proved especially dangerous, 
though of course it does not account for the comparative 
success of a theoretically unsatisfactory system. (2) The 
reason that a fair degree of uniformity in administering the 
laws has been preserved is the control which the legislature 



Town and County Government 389 

has over the local administration. This was formerly exer- Local offi- 
cised in several ways; namely, by appointing and removing ^^^"^^ are con- 
local officials, by making special laws, and by going into some ways 
great detail in each law, telling just how it should be ad- ^y ^^^ i^S's- 
ministered. Now the chief dependence is placed upon the 
last method, for even county sheriffs are chosen by the coun- 
ties, while local and special laws are ordinarily forbidden 
by the state constitution. 

There are, however, disadvantages in the legislative con- 
trol oi local administration, and the tendency during recent 
years has been toward creating state boards and executive 
officers, as shown in chapter XIX, in order to get better 
and more uniform results. 

469. "Home Rule" in Rural Districts. — What may be Nature of 
spoken of as the "home rule" of the localities consists of home rule, 
three principal things: (i) The right of each political 
division to decide matters of local interest for itself; (2) ex- 
emption from special legislation; and (3) the privilege of 
choosing all local administrative officials. 

(i) The rights belonging to the first class do not cover Constitution- 
even all of the local ordinances that a county would natu- ^' "^^*^ '" 
rally make; but, on the other hand, in a few states county 
boundaries are not changed, nor new counties erected, nor '^^T^efdum 
county seats moved except by permission of the county 227-240. 
board and the voters. The last twenty-five years have 
brought the counties more rights of this kind at the expense 
of the legislatures. 

(2) As most of the constitutions prohibit the passage of Freedom 
laws that apply to but one county or town, the localities are ^'^°"^ ^°^'^} 
thus freed from considerable interference unless the legis- legislation. 
lature makes "general" laws, which divide the cities and ^^ 
counties into so many classes that the laws are really special. Democracy, 
If the courts uphold these laws as constitutional, as some 348-351- 
of them have done, the constitutional prohibition is of no 

value. 

(3) By the election of all of the officials charged with the 
administration of law within the county or town, the locali- 



390 



The American Federal State 



Election of 
all local ad- 
ministrative 
officials. 

De Tocque- 
ville, Democ- 
racy in 
Amer., I, 
107-122. 



Town, 
county, and 
compromise 
systems. 

Hinsdale, 
hk 716-731- 



ties are able to have the law applied as they want it. In 
practice, that gives them a great deal of "local option," 
permitting them to say, within certain limits, whether a 
state law shall be rigidly or leniently enforced; so that it 
makes less difference to them that the state legislature inter- 
meddles with their affairs, since they are allowed to be 
under officers of their own choosing and do somewhat as 
they please in carrying out state laws. The objections to 
this method, because the state laws which should be uni- 
formly administered cannot be, are without any doubt very 
serious; but the advantages, nevertheless, outweigh the 
defects. The right to participate in the choice of so many 
persons quickens an interest in government, and proves an 
education of the highest value in every community; while 
the right to ignore the most obnoxious features of laws 
makes improbable that antagonism to government which 
so quickly undermines all regard for law and order. De 
Tocqueville, accustomed to a system where there was more 
local legislative power than in ours, but constant supervision 
of local officials, accompanied by arbitrary power to remove 
them, is unsparing in his praise of the "political" advan- 
tages of administrative decentralization. 

470. Types of Local Government in the United States. — 
The unit of local government in the United States is either 
the county or the town. Where the town is most impor- 
tant, it is customary to speak of local government as town 
government. If the town has few powers, or does not exist 
at all, we call it county government; and where the coun- 
ties are subdivided into townships, we speak of the com- 
promise system of local government. In the third, or 
compromise type, the township varies in importance from 
a local district with limited financial and judicial powers 
to one which holds its town-meeting, elects several town 
officials, and transacts considerable business; but in no 
state using the compromise system does the town play a 
part in local government equal to that of the county in the 
same states. Speaking of the United States at large, local 



Town and County Government 



391 



government means really the government of the county, 
because outside of New England the smaller local districts 
are insignificant when compared with the county. 

In the six New England states the town is the unit for local govern- The extent of 
ment. In the former slave states townships are almost unknown, and *own govern- 
the local area smaller than the county is the school district, which has ™^" ' 
more powers the farther west and northwest we go, while the Border 
states have.a local government of the county type with a constant ten- 
dency to give smaller districts more and more duties. New York and 
Michigan have townships with town meetings, which possess consider- 
able vigor; but in all of the rest of the states, while townships exist, 
they rarely ever have much to do with the local government, and may 
not even be public corporations. 



471. Historic Changes in the New England Town. — 

The reasons that led the Puritan colonies to adopt the town form of 
government have been considered (§ 59), and the nature of that gov- 
ernment briefly treated (§§ 60-62). In its methods and general char- 
acter the town meeting is little different from its seventeenth-century 
prototype, but in some ways it is radically unlike the meetings of two 
hundred years ago. Then the meetings were small, and every member 
had a definite interest in them. Now most of the towns are large, sev- 
eral having ten thousand or more inhabitants, many of the town meet- 
ings being in consequence of too great a size to permit more than a few 
leaders to exercise any great influence. A change has also taken place 
in the character of the population, caused by the immigration of many 
foreigners, especially French-Canadians, the foreign element increasing 
at a much more rapid rate than the native population. While it is a 
well-known fact that the town meetings have lost considerable in value 
by these changes, nevertheless there is no part of the country where 
the local government is as vital as it still is in New England. 

472. The Town Meeting. — The town meetings are held 
ordinarily but once a year, though they may be called more 
often. Notice is always given by the selectmen, stating 
when the meeting will be held and what business will come 
before it. Gathering at the time appointed in the town 
hall, or some other public building, the voters select a 
chairman, called a moderator, and proceed to act upon the 
reports of all town officers for the succeeding year. The 
chief duties consist in the election of the new officials, whg 



Towns are 
larger and 
foreigners 
more nu- 
merous. 

Bryce, 406- 
408. 



Sessions and 
business. 

Clark, Out- 
lines of 
Civics, 178- 
186. 

Howard, 
Local Const' I 
Hist., 225- 
229. 



392 



The American Federal State 



Selectmen, 
clerk, school 
trustees, etc. 

Fiske, Civil 
Gov't, 30-24. 



Government 
and relation 
to the county. 

Macy, Civil 
Gov't, 61-65, 
70-72. 



are usually quite numerous, and the appropriation of funds 
for the general work of the town and for special improve- 
ments. It is interesting to see how carefully all details of 
town government, particularly in matters of finance, are 
regulated by the meeting, so that it never surrenders to its 
public servants the real control of its own affairs. 

473. Town Officials. — The principal officials for execut- 
ing the wishes of the town meeting a,re the selectmen, who 
vary in number from three to nine, and are now usually 
chosen for a term of three years. They take general charge 
of town business and represent it in the courts or in deal- 
ing with the county and the state. The school committee 
is composed ordinarily of three members, chosen for as 
many years, with quite full powers over the selection of 
superintendents, teachers, and text-books. All town records 
are kept by the clerk, and moneys are deposited with the 
treasurer, the taxes being levied by the assessor and gath- 
ered by the tax collector. Very few towns are without over- 
seers of the poor and health officers, though the duties 
usually assigned to those officers may be left to the select- 
men. There are usually several other officials, also, chosen 
at the town meeting. 

474. The New York Town. — The town in New York and 
in the states and parts of states that have adopted the New 
York system is, like that of New England, a public corpora- 
tion, i.e. the citizens living within its boundaries are recog- 
nized as constituting a body corporate with the right to 
hold and dispose of property, to sue, and to levy taxes. It 
has its town meeting, which is held on a day designated 
by the county board of supervisors, this one fact illustrating 
the minor importance of the town in these states. There 
are no officials corresponding in power to the selectmen, 
but there is a supervisor, with some financial duties, who 
represents the town on the county board. He is therefore 
more of a county than a town official. The town also has 
a clerk, assessor, constables, besides overseers of the poor 
and highway commissioners. 



Town and County Government 393 

475. The Township in the West. — Except in Michigan, Conditions 
where the town was directly implanted by the early settlers effecting its 
from New York, town government in the West has been of powers, 
slow growth. The conditions which led to its adoption in ^., j.. 
New England (§§ 59, 62) have been absent, because agri- state, 
culture was the sole occupation at first and the population ^^ 1222-1233. 
was scattered. Professor Howard, in his invaluable book Howard, 
on Local Constitutional History in the United States, shows ^^^ ^^" 
conclusively that county government was everywhere uni- 156. 
versal for economic reasons, and that the institutions of the 
states from which most of the immigrants came had com- 
paratively little influence. That they did exert some, how- 
ever, is shown by the experience of Illinois, the northern 
part of which was settled by people from New England and 
the Middle states, while the southern half was occupied 
by Virginians and Kentuckians. County government was 
the rule until farms became fairly numerous and villages 
sprang up. Then the northern part of the state began 
an agitation for a town organization, the Southerners offer- 
ing serious opposition. The result was a compromise, 
which allowed any county to adopt the township system 
when its inhabitants desired it. The northern half im- 
mediately began to have townships, and now almost every 
county in the state is thus subdivided. The experience 
of Nebraska shows that the character of the local govern- 
ment depends more on the density of the population than 
on their nativity, because their county government alone 
existed till 1883 when the more populous counties suc- 
ceeded in obtaining permission to create townships when 
desired. 

As already suggested (§ 187), the township in the West School dis- 
srrew up around the schoolhouse, and has been developed t"ctasunit 

. of local 

largely according to the educational needs of the commu- government. 

nity. Town meetings are rare, the townships are not even gg^iis in 

public corporations in many states, while the public officials y. H. U. S., 

are often limited to those with judicial, police, school, and, ^' ^' ^9-^^- 

possibly, financial duties. 



394 



The American Federal State 



A judicial 
and tinancial 
subdivision 
of the state. 

Howard, 
ibid., 458- 
464. 



The chief 
local iinit of 
government. 

Hinsdale, 
§§ 721-723. 

Bemis, in 
y. H. U. 5., 
XI, 459-463. 

Howard, 
464-470. 



Subdivisions 
of the 

county. 

Howard, 
230-334. 



General simi- 
larity of the 
counties. 



476. The New England County. — Everywhere the county, 
like the town at its best, is a public corporation clothed 
with power to sue and to be sued, to erect buildings for 
public use, to hold other property, and to assess and collect 
taxes to a certain amount. In New England the county is 
charged with fewer duties than elsewhere, and in Rhode 
Island it exists solely for judicial purposes. The chief 
authority is a board of commissioners, as in over two- 
thirds of the states; but they are concerned chiefly with the 
highways and certain questions of finance. Other officials 
are the sheriff, treasurer, and the justices of the peace. 

477. The Southern County. — In the South the county, 
oddly enough, is but little better developed than in the North- 
east, having less work to perform than the county of the 
West and Northwest. Some of the states still retain the 
justices of the peace as the administrative and judicial 
board, giving them control of most of the local affairs. 
More elect from three to five commissioners, who usually 
have fuller powers than the justices, though they do not 
form a court. One state (Georgia) centres these functions 
in one official, called the Ordinary. Other duties are per- 
formed by a sheriff, a county clerk, a treasurer, assessors, 
and tax collectors, and school officials. The county always 
has sole, or almost sole, control of roads, bridges, prisons, 
schools, and the poor, and raises all the money needed for 
ail of these. 

Subdivisions of the county exist in all of the states, usu- 
ally in the form of school districts, which are rarely self- 
taxing or with full power of administration. After the War 
of Secession, the reconstruction legislature tried to intro- 
duce into Virginia, and one or two states farther south, a 
township form of government, but the attempts to use it 
were soon abandoned. 

In Louisiana the division corresponding to the county is 
called the parish. 

478. The County in General ; County Board. — It is impos- 
sible to describe, with any fulness, a county of any state 



Town and County Government 395 

and have the description apply to many others; but there 
is, nevertheless, quite a little similarity the country over. 
Although the statements made below apply especially to 
the middle West, about the same officials, with much 
the same powers, are found in all sections, even in New 
England. 

The legislative body, if we may so dignify the board that County 
makes the county ordinances, is composed, in four-fifths board: elec- 
of the states, of commissioners, three or five in number, powers. 
elected for two, three, or four years by the voters of dis- 
tricts into which the county is divided. Among their 438-450.' 
duties is that of supervising all the other county officers, 
particularly those who handle the funds. They usually 
have charge of laying out townships and school districts, 
the care of roads, of the poor, and of public buildings in 
general. They ordinarily determine the amount of money 
to be raised for expenses within the county, and may act 
as a board of equalization to hear complaints of persons 
who believe themselves too heavily assessed. They may 
also have considerable power of appointment, though rarely 
of removal. 

479. Chief Officials of the County. — The principal single The sheriff, 
officer of the county is the sheriff who retains but few of Howard 
the duties belonging to his powerful prototype of the 450-455. 
Middle Ages. In a sense, he is the representative of the 
state in the county; but owing to the impossibility of re- 
moving him, except in a few instances, he is a county 
rather than a state executive officer. The maintenance of 
peace and order are in his hands, while the execution of 
all decrees and decisions of all but the lowest courts form 
his chief duty. 

Next in power to the sheriff is the person who audits cierk and 
claims against the county. This work may be assigned to ^"'^^^o''- 
a special official, called the auditor, but in many states it 
is left to the county clerk. The county clerk is also charged 
with keeping the records of the county board and courts, 
and he may have duties connected with elections. 



396 



The American Federal State 



School super- 
intendent. 



Assessors. 

Howard, 
453-458. 



Treasurer, 
coroner, at- 
torney, pub- 
lic adminis- 
trator, and 
recorder. 



An undevel- 
oped munici- 
pality. 

Goodnow, 
Co/np. 

Admin. Law, 
I, 218-222. 



The head of the schools, called either a commissioner 
or a superintendent, has general supervision of all but city 
schools. He usually apportions the money, if any is ex- 
pended by the state, for schools, visits them at stated peri- 
ods, and may give teachers' examinations. Occasionally 
he has some power of selecting teachers and, more fre- 
quently, that of dismissal. In some, or all, of his duties 
he may be aided by a county school board, of which he is 
the executive officer. 

480. Other County Officials. — When there is an assessor, 
as in a few states, the great opportunities for exercising his 
discretion in making an assessment high or low permit 
him to wield considerable power; but the almost universal 
custom is to accept the estimates of local assessors and have 
these estimates equalized by some county authority, prefer- 
ably the county board. The collection of the taxes is often, 
but less frequently, left to the towns. 

The treasurer has charge of the money of the county, 
and is obliged to give a very heavy bond, which is forfeited 
if he appropriates any of the funds to his own use. The 
coroner investigates the causes, in case of violent death, 
and, to aid him, summons a jury, usually of twelve men, 
who hear evidence and render a decision. The attorney 
acts both as a legal adviser and as a public prosecutor to 
protect the county when a crime is tried in a county court. 
There are often public administrators, who take charge of 
the estates of persons dying without wills; recorders, who 
keep a record of all mortgages, real estate transfers, etc. ; 
and land commissioners, who look after surveys. 

481 . Incorporated Villages. — Besides the counties, towns, 
and cities, there are incorporated villages which are in- 
cipient municipalities and play quite a part in local gov- 
ernment. As a rule, incorporation does not take place 
except at the request of a majority of the voters within the 
villages. This is done under general statutes, which pre- 
scribe the method of action, the officials permitted, the 
date of village elections, and the limit of tax rate. The 



Toivn and County Government 397 

special act of incorporation states also the boundaries, as 
well as the number, term, pay, and powers of officials, if 
not already specified in the law. There are usually trustees, 
who may make certain kinds of by-laws, a clerk, a treasurer, 
an assessor, a constable, overseers of the poor, and perhaps 
others. 

482. Functions of Local Government. — Three of the sub- Variety of 
jects to which the attention of local officials is greatly f^i^ctions. 
directed have been treated in the previous chapter. From Bryce, 413- 
what has been said, the freedom left to the localities in ^ 

their administration of the school, liquor, and penal laws 
shows that in connection with these three phases of state 
activity the work done by the counties and the towns is no 
insignificant one. Two other functions of the localities 
deserve consideration, both of which are, in a sense, phases 
of state activity, but with which the state has less to do than 
even with education. One of these is the subject of 
charities, the other that of roads. 

483. Public Charities. — The care of the poor and of the Limits of 
defective classes, unlike that of criminals, is even yet left, P^^iiic 

. . ^ , , . , charity. 

to a large extent, to private organizations. Public charity 
occupies a much larger place in the work of government . ^^^Vh • 
than a hundred years ago, partially because the trend of the ties, chap, 
nineteenth century was toward the obligation of society to ^^^* 
her unfortunates; but, although certain kinds of charitable 
relief are now performed exclusively by our governments, 
certain others are thought to be better dispensed without 
the help of officials. 

484. State Boards of Charities. — Over one-third of the Work of the 
states have created state boards, to have general oversight ^*^*^ boards. 
of state charitable institutions, if such there are. They Warner, 
may also do some visiting among the counties, offer sug- *^ ^P" ■^^^^*' 
gestions, and make reports. The work is likely to be almost 
exclusively educative, although the boards may, of course, 

have some powers of supervision, or possibly control. 

The state institutions which are most common are those Care of the 
for the blind or the deaf and the dumb. State insane asy- ^"^^"^* 



398 



The American Federal State 



Warner, 
chap. XI. 



Character- 
istics and 
defects. 

Warner, 
chap. VI. 



Dependent 
children. 

Warner, 
chap. IX. 



Hospitals 
and dispen- 
saries. 



lums, or more correctly insane hospitals, are maintained 
by the more progressive commonwealths for the most vio- 
lent cases, the milder ones being all but universally left in 
the charge of the counties. A large sum is expended each 
year for the care of insane patients and the attempted cure 
of acute mental disease. 

485. The Almshouse. — The bulk of the burden of public 
charity falls upon the county or, in New England, the town, 
though the city never fails to have some share of the ex- 
pense. The counties maintain an institution generally 
known as the almshouse, but occasionally called by a less 
offensive name. This is primarily a home for the aged 
poor, and for those absolutely incompetent and without 
friends to support them. The poorest almshouses make no 
provision for the classification of their inmates or for the 
separation of the classes; the aged, the young, the blind, 
the sick, the feeble-minded, the insane, and the lazy being 
often herded together. In such an institution the practical 
management is no better than the theoretical arrangement, 
or lack of it; the person in charge usually being ignorant, 
if not rough or brutal. Fortunately, almshouses of this type 
are much rarer than formerly, and most of the localities 
nowadays provide for separate homes for children and the 
insane, or at least separate wards for the insane and the sick. 

486. Other Local Charities. — Either public or private 
enterprise manages to find a means of erecting children's 
homes, for the purpose of keeping orphaned little ones out 
of the streets and away from evil influences. This is felt 
to be the most necessary step in the process of preventing 
crime, and that, consequently, it should be undertaken by 
the state for its own safety, if not for the sake of the 
children themselves. 

Many cities, and some counties and towns, maintain hos- 
pitals, at public expense, for those unable to buy needed 
medical care. Some of the larger municipalities also have 
free dispensaries, at which medical advice and drugs may 
be obtained without cost. The city physician, usually in 



Coler, Mun. 



Town and County Government 399 

connection with the board of health, is paid by the city 
for the care of the sick poor in their homes. 

Provisions, fuel, and other necessaries are in any locali- Outdoor 
ties granted by the overseers of the poor to families in '^^''^*^' 
need; but we are coming to leave this form of charity more Warner, 
and more to private parties, on the ground that they can *^ ^^' 
more easily ascertain the real need of these things and 
prevent fraud. Public lodging-houses and employment 
bureaus, when properly managed, have proved themselves 
great blessings to the honest workman out of employment, 
and to the community in ridding itself of tramps. 

In cities, especially, large sums of money are annually Public aid to 
appropriated to private organizations because it is hoped P"vate chari- 
they will use it to better advantage. When that is done, 
the city should always be satisfied that the money is properly cj^ap. xvii. 
expended. 

The great danger of all charity is that it is likely to Gov't. 

aggravate the evils it attempts to relieve, through lack of Dangers of 

discrimination. Like most of the other activities of gov- i"discnmi- 

nate charity. 
ernment, but to a greater extent than most, it requires 

earnest yet disinterested officials, who shall possess some 

tact and much sense. 

487. Rural Roads. — In spite of the great development Means of 

of railways in the United States, and of electric and horse- J^provmg 

highways. 

car lines between villages, the great dependence is, and 
always must be, upon our roads. To lay out roads in the 
right places, and see that they are kept in as good condi- 
tion as the needs of the people demand, is usually the duty 
of the county board, though often of a town highway officer. 
The erection of bridges usually belongs to the same authori- 
ties. The state does little more than make general rules 
regarding the duties of local officials, the methods to be 
used in opening and closing highways, and some regula- 
tions, possibly, regarding width, A few states have, indeed, 
encouraged the improvement of roads by appropriating from 
the state treasury a maximum amount, to be distributed 
among the localities in proportion to the amount properly 



400 The American Federal State 

expended by them for good roads. Agitation by wheelmen, 
to whom a bad road is practically useless, and the growing 
appreciation of the fact that in a fairly well settled section 
a poor road is, in the end, more costly to the farmer than a 
good one, is doing much toward improving country highways. 

QUESTIONS AND REFERENCES 

The State and the Localities (§§ 466-470) 

a. For a comparison of local government in America with that of 
France, Germany, and England, respectively, see Wilson, The State, 
§§ 440-471, 588-613, 952-985, and Goodnow, Comparative Adminis' 
trative Law, 266-294, 295-338, 234-265. For fuller discussion or 
relation of local to central government in England, consult Maltbie, 
English Local Government of To-day. 

\. What part did the theory that the state is sovereign play in mak- 
ing the state absolute in its control of the counties and townships ? 
Would there be any advantage in giving the localities a sphere of du- 
ties of their own in which they would be as uncontrolled by the state 
as the nation now is, in other words, could a federal system be estab- 
lished with profit within a state ? What is the lesson taught by the 
history of centralization (§§ 232-234) about the probable permanence 
of such a small federal system ? 

2. Summarize the advantages and disadvantages of decentralized 
administration. Which is more desirable, greater uniformity in state 
law or more local government, as we use the term ? How can we best 
obtain the greatest uniformity with the largest local liberty of action ? 

i. Enumerate the list of subjects for which special laws are prohib- 
ited to the legislature by your state constitution. Are the prohibitions 
effective or otherwise, e.g. how many classes of counties in your state 
and how many classes of cities ? 

ii. How are county seats located in your state ? How are county 
boundaries determined ? What officers are prescribed for the county 
in state law ? What ones, if any, by county vote ? By whom is the 
amount of salaries determined ? 

Town Government (§§ 471-475) 

I. Why is the town system not adopted everywhere as the sections 
become more densely populated ? Would it not be an advantage to 
have town government in all of the states ? 



Town and County Government 401 

i. What is the political division smaller than your county called ? 
How many are there in the county ? Are they public corporations ? 
What officers has it ? Does it ever hold a meeting of all of the 
voters ? If so, when, and for what purpose ? If living where the 
town is important, answer all of the questions on counties and county 
officials which would apply to town officials. 

County Government (§§ 476-481) 

i. How many counties in your state ? Are any of them natural sub- 
divisions ? How do they compare in area and in population ? Do 
they have equal representation in any part of the state government, or 
do those with few inhabitants have an undue proportion of representa- 
tives simply because they are counties ? 

ii. In what county do you live ? Has the name any historic mean- 
ing ? What is its area ? its population by the last census ? What is 
the county seat ? Is it centrally located ? Is it the largest city in the 
county ? 

(Consult Political Code for most of the following.) 

iii. How many members on your county board ? How, when, and 
for what term are they chosen ? What powers have they ? What 
are they called ? 

iv. What is the term of the county officials ? Are all elected at 
the same time and for the same term ? Are any appointed by the 
state government ? Give the highest and lowest salaries of elected 
officials. Do the offices command the best men ? 

V. Select the sheriff, clerk, or other officials and answer the fol- 
lowing : Is he a partisan ? How long has he filled the position ? 
What was his record before entering office ? Has he given satisfac- 
tory service since ? 

vi. If living in a village, give population, limits, date of incorporation, 
officers, salaries, and an estimate of the success of the village government. 

vii. To whom do you go to get a warrant to have some one ar- 
rested ? Who serves it ? Of whom do your teachers get their pay ? 
Who issues teachers' certificates ? Are copies of deeds and mortgages 
kept ? With whom ? Why ? Who takes charge of estates of persons 
dying without wills ? If a will is made, how is it admitted to probate? 
What is an executor ? What is meant by a deed ? by the title ? How is 
each obtained ? What is a mortgage ? How is a mortgage foreclosed ? 

Functions of Local Government (§§ 4S2-487) 

a. On public charities in this country consult Warner, American 
Charities, Part II; Whitten, Public Administration in Massachu- 
2D 



402 The American Federal State 

setts, chap. Ill; Fairlie, Administration in New York, 78-I14; Re- 
port on Organization of Charities (1893), 43-134. 

b. On charity in England, see J. L. Lowell, Public Relief and 
Private Charity, 9-48; Maltbie, English Local Government, chap. II. 
On charity in France, Organization of Charities, 148-167. 

1. Is there any good reason why the county officials shall be par- 
tisans ? What proportion of their duties relate to political policies ? 
Is administrative ability essential ? 

2. In what ways may charity become indiscriminate ? Why is pub- 
lic charity more likely to become burdened with abuses than that in 
private hands ? Should charity become more of a government affair 
or not ? Why ? 

i. Have you a state board of charities? If so, what powers has it? 
How is it chosen ? What has it done to improve the condition of the 
institutions of the state ? 

ii. Where is your almshouse located ? Is any attempt made to 
separate the different classes of inmates ? Is there a farm connected 
with it ? Does it seem to be well managed ? 

iii. Learn whether any or all of the classes of charity enumerated 
in § 486 are dispensed by your local governments. Are any others ? 

iv. Are your roads laid out and cared for by the town or the county? 
What was the expenditure last year ? Are the roads of your section 
well located ? How are they improved ? Are they satisfactory ? 

V. Get the report of the treasurer or auditor for last year. What 
is the assessed value of property in the county ? the tax rate ? the 
total receipts ? the expenditures ? Name the chief items of expense 
in their order. Which ones are increasing most rapidly ? 



CHAPTER XXI 

THE MUNICIPALITY 
General References 

Bryce (and Low), American Commonxvealth, 417-444. Gives both 
English and American views of municipal conditions and success. 

Coler, Municipal Government. Experiences in New York City at the 
close of the nineteenth century. 

Conkling, Municipal Government in the United States. Furnishes 
many interesting facts. 

Wilcox, A Study of City Government. An excellent handbook; sub- 
jects treated under problems of Organization, Function, and Con- 
trol. 

Goodnow, Municipal Home Rule. Discusses the legal rights of the 
municipality. 

Goodnow, Municipal Problems. Treats the relation of city to the 
state and the principles of organization. The best single volume 
on the city. 

Eaton, The Government of Municipalities. Covers the subject pretty 
fully ; everything considered from standpoint of " civil service 
reform." 

National Municipal League, Conferences for Good City Government. 
Reports to 1898 on government of different cities; for 1899 sug- 
gests a model city charter and discusses it. 

Johns Hopkins University Studies, V (on different cities). 

Parsons, The City for the People, 17-254, 387-474. Strongly favors 
municipal ownership. 

Maltbie, Municipal Functions. A study of the development, scope, and 
tendency of municipal socialism (Municipal Affairs for December, 
1898) on American and foreign cities. Invaluable for reference. 

Bemis (ed.) et al.. Municipal Monopolies in the United States. Sepa- 
rate papers upon Water, Gas, Electricity, and other functions; 
favoring public ownership. 

Periodical indexes under City or Municipal Government, Reform, 
Functions, Ownership, Debt and Franchises, Public Ownership, 
Charter, Mayor, Council, Street Management, Water Works, etc. 
403 



404 



The American Federal State 



Special dif- 
ficulties in 
city govern- 
ment. 

Low, S., in 

Biyce, 

428-432. 

Goodnow, 
Mun. Prob- 
lems, 282- 
3"- 



488. Some Problems of the City. — The government of 
municipalities has furnished a large number of problems 
whose solution is engaging the attention of prominent 
workers and thinkers. So far in our history our city gov- 
ernment has been deemed quite unsatisfactory, but as the 
subject has not received the consideration it deserved until 
recent years, there are good prospects of decided improve- 
ment in the near future. A hundred years ago our urban 
population comprised less than five per cent of our whole 
number, no city having 100,000 people. In 1850 New 
York had but 500,000 souls, and nearly ninety per cent of 
the inhabitants of the United States resided in the country. 
The census of 1900 shows that nearly one-third of the people 
of the United States live in cities having a population of at 
least 8000 each, and that thirty-eight cities have passed the 
100,000 mark. This rapid growth of cities, often covering 
great areas, has meant that many new duties have been as- 
sumed, and that great sums of money have been expended. 
Meanwhile, the cities have been passing through several 
experimental stages of government, and have received large 
accessions of foreign immigrants who have brought with 
them little or no experience that would be of any value in 
their new homes. The democratic principles of an almost 
unrestricted manhood suffrage, popular election, and the 
" spoils system " have not, on the whole, tended to improve 
a government whose successful operation demands careful 
and efficient administration. 



Areas. 



Elements of 
population. 



The area of one-third of the cities with over 100,000 each is 40 
square miles or greater, four of them covering over 100 square miles 
apiece. Smaller cities, especially in the West, are territorially very 
much larger in proportion to the population. 

The number of aliens in our large cities has been particularly notice- 
able since i860. The census of that year shows that New York, Boston, 
Brooklyn, Chicago, and Cincinnati had between forty and fifty per cent 
of foreigners. By the census of 1890 New York City, with a popula- 
tion of 1,515,301, had 639,943 of foreign birth and 579,275 Americans 
of foreign parentage, while in San Francisco those whose parents were 
born abroad numbered seventy-eight per cent of all, and in Milwaukee 



The Municipality 405 

those whose parents were native Americans equalled less than fourteen 
per cent of all. It must be admitted that some of the Americans of 
foreign parentage took more interest in municipal government than 
descendants of revolutionary patriots, but a considerable percentage 
were not truly American. What was true of New York is in some 
measure true of almost all of our cities, in which at least half of the 
voters were born abroad, because among immigrants there is a smaller 
proportion of women and children. 

489. Development of Municipal Government. — We may dis- Colonial 

tinguish three periods of municipal development : (i) The P^"od. 

earliest may be termed the colonial period, though it per- Goodnow, 

sisted till perhaps fifty years after independence was de- ^J" ^^''^' 
clared. The cities were governed under charters granted 

F&irlic T A. 

first by the King or royal representative, and afterward by jn j/^^,,; * ' 
the state governors. Full powers were given and exercised Program, i- 
by a single body, composed usually of councillors, mayor, ^^' 
and treasurer, all of whom had legislative, judicial, and 
executive duties. As a rule, the councillors were chosen 
by a select set of voters, the mayor and treasurer being 
appointed by the state governor. 

(2) The second period was one of reorganization upon a Period before 
democratic basis. Charters were now granted by the legis- ^'^'^ ^^^^• 
latures and revoked or modified at will. Separation of the Fairiie, n- 
departments, already begun, was completed. Popular elec- ^°' 

tion was substituted for appointment in the selection of 
most administrative officials, and the council was gradually 
stripped of its more important duties. 

(3) The third period marks the complete supremacy of City govern- 

the state legislature in city affairs. It is almost needless ^^n^^mce 

^ ^ i860. 

to say that this stage still exists. The council has been 

still further reduced in strength, its legislative rights being ^"^ '^' 

largely assumed by the state, in spite of constitutional 

restrictions upon the passing of local and special laws. 

Administrative power is being concentrated more and more 

in the hands of the mayor, with the hope of obtaining 

greater efficiency and responsibility, while recently a 

decided effort has been made to give the municipality, 

as a whole, a larger sphere of action. 



4o6 



The American Federal State 



A subdivi- 
sion of the 
state and a 
centre of 
population. 

Goodnow, 
Mun. Prob- 
lems, 22-89. 



An act of the 
state legis- 
lature. 



490. Twofold Functions of the City. — Like the county, 
the city is a public corporation created by act of the state 
legislature, but, unlike the county, it is more than a con- 
venient subdivision of the state for the proper administra- 
tion of state law. It is primarily a thickly populated district 
endowed with definite powers for the satisfaction of its own 
local needs. This twofold character may perhaps be best 
explained by illustrations, (i) There are a great many 
things, like the laying out of streets, street lighting and 
grading, protection from fire, the building of sewers, regu- 
lation of water supply, transportation, and a multitude of 
others that are vastly more interesting and important to 
the people of the city than to the people of the state, and 
which they should be left to control, as far as possible, 
in their own way. (2) On the other hand, the laws for 
the protection of life and property, the system of public 
education, measures for the preservation of health, and 
the care of the poor originate with the state govern- 
ment, because it is essential that these things should be 
fairly uniform throughout the state. It may be necessary 
for the cities to have more elaborate machinery to carry 
out these state laws than less populated districts, but 
they remain matters of state rather than municipal con- 
cern. 

491 . The Charter. — So far as the city has a fundamental 
law, it is the charter. This document is, however, merely 
an act of the legislature, except in Missouri, California, 
Washington, and Minnesota, and is subject to repeal and 
amendment like any other law. No incorporation occurs 
ordinarily unless a town requests a city form of govern- 
ment; but the city is not able to determine for itself the 
nature of its government nor the character nor extent of its 
functions, as the legislature has complete control of every- 
thing, usually even the smallest details. Like the com- 
monwealth constitutions, the charters are quite full, so that 
the ordinance-making power of the council is sure to be 
limited. 



The Municipality 407 

492. Reform in Charter-making. — Before 1850 there were Charters 
several instances where charters were framed by city conventions, but made by 
until 1875 "° constitution provided for city cooperation in making ^' '^^" 
charters. Missouri in that year took the first step toward city self- Parsons, City 
government, California followed in 1879, Washington in 1889, and for People, 
Minnesota in 1896. ^ 5-427- 

The California system provides that when a city wishes to frame a Oberholtzer, 
new charter, the council may hold an election in order to choose fifteen Referendum, 
freeholders, each of whom shall have been a resident of the city at 343""3 7- 
least five years. This body shall proceed to make, subject to constitu- The Califor- 
tional limitations, a charter which shall be submitted to the voters of nia method, 
the city. If approved by a majority of those voting, it shall be sent to 
the legislature which must approve it, before it is declared in force. 
The Missouri system does not require ratification by the legislature, but 
the charter is subordinate to laws which affect the cities. 

It is scarcely possible that such a practice will be soon widely 
adopted, but there is reason to hope that in time the states will 
permit the cities to decide under very general laws what form of 
government and special requirements are best suited to their own 
needs. 

493. Tlie Council : Organization. — The council is the Number of 

legislative municipal organ. In about one-fourth of our chambers 
... ° and election 

cities it IS bicameral, the upper house often being chosen of members. 
from the city at large or from a few districts, the members Qoodnow 
of the lower house representing wards. Where there is Comp.Ad- 
only one chamber, it is ordinarily made up of one repre- ^^""'^^'"^^^ 
sentative from each ward, although some cities have pre- 217. ' 
ferred election by general ticket or by districts. The first conkiing 
method insures local representation; the second and third Mun. Gov't, 
are likely to secure better men. Election by the city at '^ ^^' 
large has the disadvantage of giving the dominant party an Wilcox, City 
undue majority unless there is some provisions for minor- j58_ ' 
ity or proportional representation, of which we have no 
conspicuous examples as yet. 

Most of our cities choose the members of the council for 
two or four years, though the New England states show a 
preference for one year. When the term is a long one, the 
council is apt to be a continuous body, one-half retiring at 
a time. 



4o8 



The American Federal State 



Limited 
character of 
powers. 

Goodnow, 
Admin. Law, 
I, 213-215. 

Cf. Good- 
now, Mun, 
Problems, 
215-246. 

Wilcox, City 
Gov't, 168- 
179. 



Two classes 
of mayors. 

The mayor 

without 
power. 

Conkling, 
Mim. Gov't, 
chap. II. 

Wilcox, City 
Gov't, 181- 
191. 



The mayor 
with power. 



494. Powers of the Council. — The powers which are exer- 
cised by the council are those delegated by the legislature 
and enumerated in the charter. They are thus subject to 
restriction or alteration at the will of the legislature. 
Being enumerated, they apply solely to the subjects men- 
tioned in the list of powers. These are of two classes, one 
dealing with the kinds of ordinances, or local laws, that 
the council may pass, the other referring to finance. Or- 
dinarily the larger, but not the whole, part of the ordinance- 
making power is vested in the council, covering everything 
for which by-laws are necessary, except certain police and 
health regulations, which are proclaimed by the boards of 
the respective departments. To the council is given the 
right to determine how much money shall be raised for 
city expenses, though in recent charters it is often degraded 
to a mere revisory body. It arranges for the borrowing of 
money for permanent improvements, subject usually to a 
vote of the people on each important loan, and subject also 
to the limit of indebtedness prescribed by the city charter. 
The granting of franchises is ordinarily left in its hands, 
and it has the power to make contracts as well. 

495. The Mayor. — The position of the mayor is very 
different in different cities. He is always chosen by popu- 
lar election, usually for two or four years. In most of the 
cities that have not had their governments remodelled 
recently, the mayor has a position similar to that of the 
state governor. His greatest influence comes from the 
power to veto ordinances. He may have some power of 
appointment, possibly of removal, but he has no control 
whatever over the other executive officials, who are also 
elected by the people ; and he may not be able to do any- 
thing with the executive boards or appointed heads, who 
are possibly chosen by the council or even by the state 
legislature. 

The mayor who has been fortunate enough to be given 
centralized power is rather to be compared with the Presi- 
dent of the United States, for not only has he the veto, but 



The Municipality 409 

almost sole power of appointment and removal of the whole Low, s., in 
administrative service. His term is apt to be short, but ^""y^^- 434- 

439- 

his pay is large. The right to submit an estimate of the 
amount of money needed to run the government — an esti- 
mate which the council cannot increase — may be given 
him in extreme cases. But with concentration of power 
comes increased responsibility, as he may ordinarily be 
removed by a two-thirds or three-fourths majority of the 
council. He is, in truth, the government, and he is held 
strictly accountable for his own acts and those of his 
subordinates. 

The Brooklyn charter of 1882 was the first to introduce this "cen- Spread of the 
trah'zed " system. The only officials chosen by the people were the Brooklyn 
mayor, the controller, and the auditor. All other officials and boards sy^*^™- 
were appointed by the mayor. The example of Brooklyn has been 
followed to some extent by most of the large cities that have adopted 
new governments since 1890. 

496. Other Elected Officials. — As most of our cities are Large num- 
still the "non-centralized" type of government — the one ^^^ m"non- 

centralized 

first described in the previous section — we usually find cides. 

that at municipal elections the list of persons chosen include 

a clerk, a treasurer, a tax collector, an assessor, an auditor, 

an attorney, besides the judges. In general, the duties of 

these officials correspond to those of similar offices of the 

county government, though they are apt to be a little 

broader in scope. 

In the "centralized" cities the auditor or controller is Auditor in 

often the only executive official, besides the mayor, who "central- 

ized " cities. 

is elected. He is given more power than the auditor in 
the non-centralized type, forming, with the mayor, the 
commissioners of public works, public safety, and health, 
a board of estimate that has the sole right to introduce 
financial bills which the council can reject, or amend only 
by reducing the amount authorized. The appointment of 
the tax collector, attorney, etc., in such a government is 
given to the mayor, their terms of office being frequently 
longer than his. 



4IO 



The American Federal State 



Recent at- 
tempts to 

classily 
departments 
more scien- 
tifically. 

Cf. Wilcox, 
City Gov't, 
193-214. 



497. Administrative Departments. — Besides the depart- 
ments, of which the persons just considered are heads, every 
city has many others for the administration of the law. 
As administration is so much more important than legisla- 
tion in cities, the success of the government depends, to a 
great extent, upon the organization of these departments. 
Where little attempt has been made to remodel the mu- 
nicipal system according to scientific principles, they are 
very numerous and in no way related to each other; but in 
the "centralized" cities some of the departments have 
been abolished outright or consolidated, while some . of 
those remaining have been made into bureaus of two or 
three grand departments. At the head of these grand de- 
partments stands the department of pubHc works, which 
includes several bureaus, each of which by itself performs 
duties of magnitude. Another instance is the department 
of public safety, which looks after police, fire, and health, 
and some other functions. If, as is the case in most of 
these cities, the head of each bureau is fully responsible to 
the head of his department, while the chiefs of the depart- 
ments are, in the same way, responsible to the mayor, it is 
possible to fix the blame for poor service and reward a 
faithful official as he deserves. 



Considerable discussion has been devoted to the usefulness of indi- 
viduals or boards as heads of departments. Most cities retain boards 
where deliberation is essential, or have a board to determine the policy 
of the department and a chief to execute its wishes. 



Boards aided 
by chiefs. 

Conkling, 
Mutt. Gov't, 
64-83. 



498. Police, Fire, and School Departments. — All of these 
departments are usually under boards, aided by heads called 
chiefs or a superintendent. In about ten per cent of our 
largest cities the police board is appointed and controlled 
by the state; but the rule is for the council or mayor to 
select the police and fire boards, but for the people to 
choose the board of education, usually by wards, though 
occasionally by a general ticket. The administrative heads 
are then chosen by the board. 



The Municipality 411 

Appointments upon the police, fire, and school forces Reform ofthe 

are also made by the boards in most of the cities, and it cmi service 
■' in these de- 

is the exception to demand fitness as the sole requirement partments. 

in appointment or unfitness as the only one for removal. 

The creation of better systems of civil service is one of the 

crying needs of city government. 

499. The Civil Service. — So long as administration is Why civil 
almost the sole duty of cities, political opinions are not a ^^^"^51^" 
necessary qualification of employees for over ninety-five dispensable 
per cent of the positions. Obviously, skill and experience ^°'^ 2°°*^ "jy 
should be desired above all else, and to obtain these we 

must be prepared to give salaries that will attract ability, 
and a reasonably permanent tenure to retain it. Until 
recently civil service reform in the United States has been 
confined to the national government, so that appointment 
and promotion solely on merit have been rare in our cities, 
while a change of almost the whole clerical force in a de- 
partment has quickly followed the selection of a new head. 
We have now in a few cities, and in three or four states, 
civil service boards created for the purpose of giving com- 
petitive examinations to applicants for positions, but 
progress in this direction seems very slow. 

500. Municipal Courts. — The larger cities invariably Organization 
have courts whose jurisdiction is restricted to their limits, f."^ junsdic- 

' tion. 

and which form but a part of the judicial system of the 

state. Some of the older ones may still hold special cor- "^'1,?° ^^ ^'^ 
poration courts, which were created long ago in the days 225. 
when a municipality was a privileged body; but these have 
practically disappeared. The courts usually have exclusive 
original jurisdiction of all cases arising under city ordi- 
nances, with appeal most of the time to a higher court. 
They also try petit criminal and civil suits involving state 
law. The judges are elected by the people of the city for 
terms varying from one to fourteen years. 

501 . Two Sets of Functions performed by Cities. — The Administra- 
work done by cities may be classified under two heads: jj^^gj^gsg 
administrative functions and business functions. It may functions. 



412 



The American Federal State 



Preparing 
streets for 
use. 

Conkling, 
Mun. Gov't, 
111-137. 

Maltbie, 
Municipal 
Functions, 
114-126. 



Abuse of 
street privi- 
leges. 



not always be possible to separate those of one set from 
those of the other, because many functions partake of the 
nature of both. One characteristic that both classes of 
functions have in common is the tendency to increase in 
number and complexity. Half a century ago most of the 
administrative duties of the present city were performed, 
if at all, by the individual householders. It is not a great 
many years since the inhabitants of most cities depended 
upon outsiders for sprinkling their streets, for care of refuse, 
for academic education, and for the care of the defective 
classes. The same thing is true of the business, or, as some 
term them, the socialistic functions. Where the city un- 
dertakes to supply water, gas, or electricity, or to furnish 
transportation, it does it with the hope of giving better 
service rather than for the purpose of making profit, though 
an addition to the sources of the city's revenue is never 
unwelcome. 

502. Care and Protection of the Streets. — Streets are usu- 
ally laid out under the direction of the council, assisted by 
the superintendent of streets. The cost is defrayed partly 
by the people of the adjacent territory and partly by the 
city. If the owners of the land refuse to sell, it is neces- 
sary to resort to the right of eminent domain, which is con- 
ferred by the state legislature for this purpose. The case 
is tried in the suitable court, and if the contention of the 
city is sustained the value is usually fixed by commis- 
sioners appointed by the judge. Once cut through, the 
street must be graded and, as it comes more into use, 
paved. The expense of these operations and subsequent 
care is borne partly or wholly by the adjacent property, 
except for incidental repairs. 

It is claimed, too often with just cause, that the contracts 
let by the city are not well performed : that the city always 
pays for more than it gets. The city is also careless in 
allowing private parties and corporations to tear up the 
streets in order to put in pipes that should have been laid 
before the pavement was completed ; but the most unfor- 



The Municipality 413 

tunate part of street management is the way that franchises 
to railways, water companies, and others have been given 
away, although they conferred rights which should have 
brought large sums into the city treasury. 

503. Police Regulations. — The police duties of a city Scope of the 
cover a field embracing such apparently unrelated subjects P"^^'^^ power. 
as the arrest and detention of criminals, the granting of Maitbie, 
licenses, building of sewage systems, and a multitude of ^^^^^ 42-60'. 
other functions for the protection of the life, property, and 

health of the inhabitants. The first of these occupies the 
police force proper, and its importance increases in geo- 
metrical ratio with the growth of the city. Licenses are 
usually granted by the police board upon fulfilment of the 
legal requirements, but their enforcement is intrusted to 
the police force. 

The problem of sewage disposal is usually a troublous and The sewage 
expensive one. It is customary to have trunk sewers with ^^^^ ^'"" 
suitably located outlets, into which many branch sewers Maitbie, 126- 
empty at different points. The location of such sewer sys- 
tems calls for the highest engineering skill, great foresight 
as to future development, and considerable executive ability. 

Every city has a health officer, who has charge of all Prevention 
cases of infectious diseases and is empowered to use all ° ^^^'^^ ° 
necessary means to prevent the spread of the disease. In 

Wilcox City 

seaboard cities he may find it necessary to quarantine ves- Gov't, -i^-vi. 

sels arriving from infected ports. So much more stringent 

have the rules for the treatment of the whole subject become, 

that epidemics are no longer to be dreaded as in former 

times. 

To prevent the sale of unhealthful or forbidden articles Food inspec- 
of food, inspectors are appointed, who perform a valuable *'°"' 
work in preventing dealers from selling tainted or diseased 
meats, impure milk, etc. 

504. Miscellaneous Functions. — Among other duties per- Educative 

formed by most or all cities are certain ones done for the ^"'^ '^^<^^^- 
•' ative activ- 

education or pleasure of the public. The establishment ities. 

of free high schools, technical schools for manual training. 



414 



The American Federal State 



Maltbie, 98- 
"3- 



Municipal 
ownership of 
water works. 

Parsons, City 
for People, 
203, 204. 

Maltbie, 125- 
127. 



Success of 
municipal 
ownership. 



Increase of 

electric 

plants. 

Maltbie, 159, 
160. 



free libraries, and art galleries are illustrations. Breathing 
places, in the form of squares in the centres of dense popu- 
lations, or large parks in the suburbs, are now thought 
indispensable for a city of prominence. A very few furnish 
museums or public baths. 

505. Water Supply. — Among the business functions un- 
dertaken by American municipalities, that connected with 
the city's supply of water is the most universal. Less than 
twenty per cent of large cities are now dependent upon 
private companies, some of these having the right to pur- 
chase the whole property at the expiration of the present 
contract. Public ownership has, almost without excep- 
tion, been more satisfactory than corporation service, and 
represents a saving to the cities and the inhabitants. 

One reason for this success is, in all probability, the 
insignificant expense of operation. The first cost, how- 
ever, is great, as the water is usually brought from a dis- 
tance, enormous storage reservoirs are required, and an 
extensive network of street pipes must be laid. Bonds are 
issued for the payment of the amount, the interest charges 
and running expenses being more than met by the income 
from water used by individuals and business companies. 

506. Gas and Electric Lighting. — Except in small places, 
very little has been invested by the municipality for gas or 
electric plants, the latter being much more common than 
the former. The greater cost of operation, the lesser need 
of a pure supply, and the state constitutional limitations 
upon the amount a city may put into public works, all have 
a deterring effect. Many of the cities that have electric 
light works furnish both the inhabitants and the streets with 
light, but most manufacture exclusively for the city's use. 
Though they have been tried but a short time, municipal 
ownership seems to have been a success. 



But four cities with a population of over 25,000 each had public 
gas works in 1900, and only a few small ones ; but of the cities with 
5000 inhabitants nearly 100 had electric plants and 300 others fur- 
nished their own electric lights. 



The Municipality 415 

507. Miscellaneous Business Enterprises. — Some cities Ownership of 

have for years owned docks, wharves, and other harbor and river docks and 
facilities. New York is constantly expending vast sums to improve wharves, 
her water front, to which she has held the title for nearly two centu- 
ries. Her docks not only pay a good interest on the money expended, 
but have been of incalculable value in increasing the commerce of the 
port. 

A few municipalities have built railroads outside of their own bor- of railroads, 
ders, but lease them to private corporations. Strange as it may seem, 
none except Boston and New York have yet constructed street rail- 
ways or subways, though the advantages of municipal ownership with 
proper business management are pronounced, both because in our 
cities transportation to the suburbs is indispensable, and because the 
streets must be kept as far as possible free from the control of private 
parties. 

A few cities have municipal lodging-houses for unfortunate work- of lodging- 
men, and a small number have tried experiments with farms upon houses, 
which to give employment to those out of work. When properly 
managed, these serve the double purpose of benefiting worthy per- 
sons and keeping the city free from tramps and loafers. 

508. The Granting of Franchises. — As public ownership Serious de- 
has made so little progress in this country, the granting to ^^^'^^. °"^y 
corporations of franchises giving the right to supply water, remedied, 
gas, electricity, transportation, or other necessaries becomes 

so much the more important. Franchises are usually granted 
either by the city council or the state legislature. If by 
the former, the conditions under which a franchise is pos- 
sible are described in the charter, and may be enlarged by 
a separate state law. It has been customary to give fran- 
chises for long periods without requiring anything in return; 
then, as population has increased, the privileges conferred 
by the franchise have become of enormous value. So often 
has this happened that cities are now endeavoring to pro- 
tect themselves by restricting the time for which franchises 
are granted to fifteen or twenty years, requiring sale of 
franchises to the highest responsible bidder, and prescrib- 
ing a minimum per cent of the gross receipts obtained from 
the business permitted, which shall be paid into the city 
treasury. Where these limitations have not existed, there 



4i6 



The American Federal State 



Importance 
of municipal 
finance. 

Wilcox, City 
Gov't, 53-61. 



General 
property tax 
and other 
forms of in- 
come. 



has often been more or less corruption among the council- 
men who have favored giving the franchise for nothing. 
On the whole, it must be said that our municipalities have 
not conducted this part of their business with economy, 
and that the unfortunate reputation for municipal mis- 
government that we have abroad is justified by the 
facts. 

509. Municipal Finance ; Sources of Revenue. — Finan- 
cial questions are relatively much more important in cities 
tlian in the states or the nation. A larger proportion of its 
duties involves the payment of money than in either of the 
others, while \X% per capita expenditures are six times those 
of the states, and nearly double those of the nation. 

The chief source of revenue is the general property tax 
(§§ 587-590) levied upon all real estate and, presumably, 
all forms of personal property. This furnishes about one- 
half of the total income. The rest is made up chiefly of 
licenses issued to liquor saloons and various other kinds of 
business, fees paid for work done on papers, issued by the 
city, fines paid by persons violating laws or ordinances, 
amounts due from corporations for franchises, and water, 
gas, or electric charges for whatever may be supplied by 
the city's plant. Large sums are also raised by special 
assessment upon property owners for improvements made 
in the immediate neighborhood. 



The city has no inherent right of taxation, that exercised being 
derived from the state constitution or legislature. In former years the 
power to levy taxes was frequently given only from year to year; but 
almost everywhere it is now conferred by general law. 



Expendi- 
tures for 
schools, 
streets, 
police, etc. 



510. Items of Expense. — More is spent for the public 
schools than for anything else, averaging about one-sixth 
of the whole expenditure. The amounts assigned the street, 
police, fire, and lighting departments are all large. The 
pay of regular ofificials and their assistants is usually but 
little smaller than those just mentioned. As the city always 
owes a debt, and usually a large one, the interest account 



The Municipality 41 7 

always has to be considered among the principal items. 
In cases of municipal ownership the expenses of operation 
must be included, while the wiser cities lay aside a sinking 
fund to replace the machinery and buildings as repairs are 
needed. 

511. Municipal Debts. — We think of the national debt indebtedness 
as being very heavy, but it is much smaller in proportion ^"^ mvest- 
to the wealth of the country than the city debts in propor- 
tion to the value of their property. However, a large part °" '"^',. 
of the municipal indebtedness is in the form of invest- 168-173. 
ment, principally for water works; while a still larger part 

was spent for public buildings, like city halls, schoolhouses, 
jails, and fire engine houses. Although a great deal of the 
money borrowed, as well as that raised by taxes, has been 
wasted, the value of the city's property in most cases is 
greater than the whole debt, so that the debt may represent 
a saving to the city of rentals equal to the amount of interest. 

Almost all states prohibit the increase of city debts beyond ten or Constitu- 

in some cases five per cent of the assessed value of the property in the tional limita- 

city. As stated above, water-works bonds are not counted. Where a ^'°"^ °" '^^' 

debtedness. 
city desires to undertake any municipal enterprise, such as electric 

lighting, erection of docks, or construction of a street railway system, Wilcox, City 

such a limitation is an almost insuperable barrier, and one which, if Govt, 89-91. 

municipal home rule is desirable, should be so altered as to allow the 

people to invest in what they see fit. 

512. Reform through Restrictions of the Suffrage. — inadvisabii- 
Among the methods suggested for improvement of the city '*y °^ P"^"?" 
finances, and indirectly for the reform of the city govern- cations, 
ment, is one that suggests a sweeping change in the right „ , 

of suffrage in all matters where money is directly involved. Mun. Prob- 
It is proposed to have at least all purely financial officials ^'"^^' ^'^S- 
elected by taxpayers or persons paying a fairly large rental, 
and to keep the finances in the hands of the representatives 
of these persons. However reasonable such a proposition 
may seem, the practical difficulties appear insurmountable. 
Without a complete reorganization of the city government 
upon entirely new lines, it would not be possible to sepa- 



4iB 



The American Federal State 



Need of per- 
manently 
organized re- 
form move- 
ments. 



Need of 
separating 
state and 
municipal 
elections. 



rate financial questions from others, if, indeed, it could be 
done at all. To introduce a tax-paying or rental qualifica- 
tion for city voters, while national and state elections are 
open to all citizens, is scarcely to be thought of at present. 
It is possible that the referendum, which is now used in 
certain cities to obtain the consent of the voters before 
money is borrowed, contracts are made, or franchises are 
granted, may open the way to a suffrage for persons with 
money interests only; but immediate reform through 
restriction of the suffrage seems out of the question. 

513. Municipal Reform through Popular Interest. — The 
first step toward reform is really much simpler. It con- 
sists in arousing and organizing the best elements of the 
cities in order to insure the election of capable and honest 
men, and to keep in close touch with the work of the city. 
The municipality has very little to do with political poli- 
cies, and nothing whatever with those policies that sepa- 
rate the nation into two great political parties. It is taken 
up with an immense amount of administrative detail, the 
proper performance of which constitutes the chief feature of 
good municipal government, but which is almost wholly 
lacking in general interest. An extra effort is therefore 
required to keep posted on how the city departments are 
doing the work, — but an effort which European experience 
shows is worth much more than it costs. 

514. City and State Elections. — As the city has so little 
interest in national and state issues, election of city officials 
upon party lines is an almost unmixed evil. But as the 
party organizations are practically the only ones, besides 
the goverment itself, that exist within the city for politi- 
cal purposes, it has been found impossible to have a non- 
partisan municipal election at the same time that state 
officials and congressmen are chosen. To remedy this 
defect separate municipal elections are being held, which 
render independent action easier, though they cannot keep 
the powerful party machinery from constituting the most 
important factor in the elections. But non-partisan move- 



The Municipality 419 

ments have been so strong, both East and West, that party 
nominations in separate elections have lost much of their 
offensive character. Whether results are to be permanent 
depends upon the earnestness and effective organization of 
the citizens. 

515. Municipal Home Rule. — The reform in the organiza- Nature of the 
tion of the city government and in the relation of the city °"^^I^^ 
to the state is the most fundamental of all. The author 
believes the second should precede the first. There must Rowe, L. S., 

,... ,, f -i 1 r •■■II' '" Mun. Pro- 

he a clearer definition of the exact field of municipal duties, g-ram, 157- 

We need a better separation of the duties that affect the 173- 
city almost exclusively from those which the city govern- 
ment performs, because it is a part of the government of 
the state; more liberty for the city in the first sphere of 
action, i.e. municipal home rule, and better control by 
state authorities of the administration of state law within 
the city. The ultimate form of the governmental organi- 
zation is as yet too deeply imbedded in the future; yet it 
seems safe to predict it will include both enlarged powers 
for the city council and a considerable amount of executive 
centralization. 



QUESTIONS AND REFERENCES 
General (§§ 488-492) 

a. In Municipal Problems, Goodnow treats the relation of the 
American city to the state (22-89), the English system of municipal 
control (111-144), and the administrative control on the continent 
(90-110). See also Wilcox, City Government, 72-114. 

b. The general character of municipal government in England is 
given by Shaw, Municipal Government in Great Britain, 30-37; in 
France, in his Municipal Government in Continental Europe, 165- 
185 ; of German cities, ibid., 306-322. 

1. Compare the position of the American city with that of the 
European. In what respects has it more liberty of action ? In what 
less ? 

2. Is it true that a city is nothing but a business corporation, or is 
it more of a public corporation existing for purpose of government ? 



420 The American Federal State 

3. What are the objections to having charters adopted by the cities 
without ratification by the legislature ? Why ought both the city and 
the legislature to have something to do with charter-making ? 

i. What was the population of your city at the last census ? What 
the per cent of growth during the previous decade ? What per cent 
were foreign born ? Native born, of foreign parentage ? From what 
countries have most of these come ? What is the area of your city ? 

ii. What date does your present charter bear ? How was it ob- 
tained ? Did any prominent citizens have anything to do with it ? 
Does it give the legislature any right to appoint a police board or 
other officials or to remove any ? May the legislature alter it at will ? 
May the legislature grant franchises or directly control expenditures 
under it ? 

Government (§§ 493-500) 

a. For purposes of comparison the following frames of government 
maybe considered: in Conferences for Good City Government (1894- 
1895), on " Minneapolis," 93-104 ; " Milwaukee," 1 19-124 ; "New Or- 
leans," 407-417; ibid. (1896), on "Pittsburg," 146-161; A. Shaw, oii 
"St. Louis," in Century, LII (1896), 253 et seq., and on "San Fran- 
cisco," R. of R., XIX (1899), 569-575; Bugbee, on "Boston," in 
/. H. U. S., V, 1 16-126; S. Low, on "Brooklyn," in Bryce, 434-439. 

i. Compare the American mayor with the heads of European cities 
as given by Shaw, Municipal Government in Great Britain, 58-63; 
Shaw, Municipal Government in Continental Europe, on "French 
Mayor," 172-180; on "German Burgomaster," 313-315, 317-320. 

1. Why is concentration of power in the hands of the mayor be- 
lieved to give better government ? Is there any present instance of 
real council government in the United States ? in England ? on the 
continent ? If so, is it successful ? 

2. Summarize carefully the advantages of election by the city at 
large. To what kinds of bodies may it be applied ? Is it advisable 
to choose part of a council on a general ticket and part by wards ? 

i. How many members in your council ? When and for what term 
are they elected ? By what method, — general ticket, or ward ? Are 
its powers enumerated ? What are the principal ones exercised ? 
What is the reputation of the council for ability and integrity ? 

ii. Is power centralized in the hands of the mayor ? What is his 
term ? his salary ? Whom does he appoint ? May he be removed ? 
If so, how ? Have your mayors been among the best men of the city ? 
What official positions did the present mayor occupy before election ? 



The Municipality 421 

iii. What officials or boards are elected by the voters? Do you 
have the board or individual system for departments? How is the 
responsibility enforced ? How are teachers appointed? removed? 
Have you any civil service rule ? To what extent is it the custom to 
change the appointed forces with each administration ? 



Functions and Finance (§§ 501-51 1) 

a, Maltbie, Municipal Functions^ summarizes the municipal efforts 
to furnish gas and electricity, 155-162. For fuller treatment, see Shaw, 
Great Britain, 199-203; Continental Europe, on " Paris," 45-54, and 
on " German Cities," 346-350. American experience is given in Bemis, 
Municipal Monopolies, chaps. II, III, VIII. 

1. To whom do the streets belong ? Has any one a right to grant 
perpetual franchises upon them? In what kinds of cities is it most 
necessary that the life of franchises be short ? Do most American 
cities belong to this class ? 

2. Is not public ownership naturally desirable ? Why has Europe 
gone farther than we in municipal enterprises ? What characteristics 
of our city government hinder a great extension of municipal func- 
tions ? How can these last be remedied ? 

3. How do American compare with European cities in cost of gov- 
ernment ? sources of revenue ? amount of debt ? and efficiency of ser- 
vice? 

i. Who has the power to lay out your streets ? What percentage 
of the cutting through, of grading, of care, is paid by the abutting 
property ? Do the car companies of your city pay for paving part of 
the streets on which they run ? What part ? 

ii. How does your water supply compare in quality and price with 
that of other cities of the same size ? Does the city own the water 
plant ? If so, when was it bought or completed ? What did it cost ? 
What is the sum total of the interest or investment, payment for sala- 
ries, cost of replacing worn out materials, and other running ex- 
penses ? Does it equal or exceed the income from water rates ? 
What was spent last year for new lines of pipes and other forms of 
investment ? 

iii. By what authority are franchises granted ? Is there a legal 
maximum time limit on them ? Is there a minimum per cent for 
railways ? What has been the experience in the past regarding the 
sale of franchises ? 

iv. What is the assessed valuation of city property ? the rate ? the 
total tax levy ? the whole amount of revenue from all sources ? Give 



422 The American Federal State 

the sums spent for schools, lighting, police, fire department, interest, 
etc. What is the debt of the city ? What per cent of interest does 
most of it bear ? What is the value of all city property, and of what 
does it consist ? (Finance Reports.) 



Municipal Reform (§§ 512-515) 

1. In what ways may universal suffrage be said to be responsible 
for the evils of city government ? What are the principal objections 
to a property or rental qualification for voters ? 

2. Show why the influence of political parties upon management of 
city affairs has not been good. Is independence of the parties possi- 
ble ? Why are cities rather than counties and states subject to "ring" 
rule ? 

3. In what does municipal home rule consist ? Give a few facts 
which show that we do not have home rule now. How can it be 
obtained ? 



PART III 
POLICIES AND PROBLEMS 

CHAPTER XXII 

SUFFRAGE AND ELECTIONS 
General References 

Cleveland, Growth of Democracy, 128-156, 285-306, 394-411. His- 
torical and critical. 

Colby, J. F., in Lalor, under " Suffrage." 

Haynes, "Qualifications for Suffrage" (/•. S. Q.), XIII, 495-512, 

State Constitutions, article on " Suffrage and Elections." 
JPolitical Codes, under Elections. 

Commons, Proportional Representation, The best book on the subject. 

Parsons, The City for the People 255-386, 474-504. Favors initiative 
and referendum. 

Cree, Direct Legislation. 

Oberholtzer, The Referendum in America (the second book of that 
name). A judicious and scholarly book. 

Periodical literature, indexes under Suffrage, Franchise, Elections, 
Ballot Reform, Australian Ballot, Corrupt Practices, Proportional 
Representation, Initiative, Referendum, Direct Legislation, etc. 
See also United States. 

516. Historical Changes in the Suffrage. — No other sub- coiby, j. p.. 

ject of state activity has so influenced the history of our '" Lalor, ill. 

country as the suffrage. Some of the changes have been Thorpe, f. 

mentioned in Part I, but we may distinguish certain steps ^^^.'"xcTv 

in the evolution of the manhood suffrage of the present day. (1897), 207- 

(i) During the seventeenth century there existed a very '^'^^• 
423 



teenth cen- 
tury, 



424 The American Federal State 

Cf. Appendix decided lack of uniformity in the franchise requirements 
F, Table I. ^j ^^ different colonies. In some parts of the country 
The seven- every white male adult had the right to vote, but the right 
tury *^^"" ^^^ little used. In other parts property was the basis of 
the suffrage, and in the North religious qualifications were 
the only important ones. 
The eigh- (2) Before the eighteenth century most of these differ- 

ences had disappeared, and in all of the colonies the man 
with land of a certain value or extent was the only voter. 
The example of England and the pressure brought to bear 
by the English government account for the new condition 
of affairs. 
From 1775 *o (3) The half century subsequent to the Revolutionary War 
^ ^^' witnessed the breaking down of these barriers of property, 

and the substitution of citizen suffrage in the newer states 
and of taxpayers' suffrage in the older. 
From 182510 (4) Extensions of the elective franchise occurred with 
1870. gygjj greater rapidity for the next forty years. Residence 

was really the only thing demanded in a large part of the 
West, and some of the less conservative sections admitted 
aliens who expected to become naturalized on an equal 
footing with citizens. At the close of this period the 
nation, as a whole, by the fifteenth amendment (1870), 
made it obligatory for all of the states to grant negroes the 
right to vote on the same terms as the whites. 
Since 1870. (s) Since 1870 great progress has been made in placing 

suffrage upon a safer basis. Citizenship has become a 
more universal requirement, with a tendency to demand 
that no person shall be allowed to vote if naturalized within 
a certain time before election. The list of persons dis- 
qualified because intellectually or otherwise incompetent 
grows longer year by year, an especial effort being made 
in the South to exclude the least fitted blacks without vio- 
lating the national Constitution. At the same time dis- 
criminations regarding sex are less pronounced, the 
standards for women, when they are allowed to vote, 
being the same as those for men. 



Stiff rage and Elections 425 

517. Condition of the Suffrage at Present ; Citizenship and Alien voters. 
Residence. — It must be continually borne in mind that the ^oxA Amer. 
elective franchise is not a right of citizenship, but a politi- Citizen's 
cal privilege conferred upon individuals by the states, ^^^^^' 
within limitations that may be prescribed by the nation. 

Just as the states allow aliens to hold and dispose of prop- \r^,A r *' 

erty, to sue and to be sued, to act as jurors, and do many 144 (1887), 

other things that really belong only to citizens, so they have ^^ "^ ' 

in many cases permitted foreigners to help in the selection Haynes, in 

P.SO XIII 
of public servants. As the character of the immigrants to (JsoS) '495- 

this country has changed during the last fifteen years, the 5^2. 

dangers arising from this course have been more evident 

and have aroused the people to exclude aliens from voting, 

so that now in but twelve states can persons who have 

declared their intention to become citizens vote on any 

question. 

Every state makes a certain period of residence a pre- Residence 

requisite to voting. This is usually one year within the require- 

1 11-1 1 ■ nients. 

state, but may be as high as two years or as low as six 

months. Maine, in fact, requires but three months, but 

demands the same period within the precinct, or smallest 

voting district. Most of the other states have residence 

qualifications for counties, towns, and precincts, in order 

that voters may be reasonably familiar with local interests, 

and that election officials may have opportunity to prevent 

fraud. 

518. Special Restrictions. — As good government is im- Educational 
possible without intelligence on the part of the voting popu- °^ property 
lation, tests of educational fitness have been applied in a 
constantly increasing number of states. Connecticut led ReTerendum 
the way, in 1855, by insisting upon ability to read or write. 120-125. 
Massachusetts followed, two years later, by barring out cf. Appendix 
those who could not read or write in English. Her exam- F, Table ll. 
pie has been followed by California, Maine, Wyoming, 
Delaware, and Connecticut. Mississippi, in 1890, pro- 
vided that if a man could neither read the constitution nor 
understand it when read, he could not vote. South Caro- 



426 



The American Federal State 



Tax qualifi- 
cations. 



Common 
disqualifica- 
tions. 

Cf. Appendix 
F. Table II. 

Woman suf- 
frage in state 
and local 
elections. 



Una, five years later, adopted the Mississippi method, but 
did not deprive those who owned property assessed for at 
least ^300, even when they were not intellectually quali- 
fied. Louisiana (1898) and Alabama (1901) embodied 
in their constitution provisions similar to those of South 
Carolina, and North Carolina (1900) excluded those who 
could not read and write in English; but all of these states 
indirectly excepted most native and alien whites from the 
tests. In a majority of these cases the tendency is a 
healthful one, since the educational test, though far from 
perfect, is the best one yet devised. 

Many of the states do not allow people to vote who have 
failed to pay taxes assessed upon them. A few permit only 
property owners to decide questions involving finance; but 
since Rhode Island abolished her qualification of $134, 
in 1888, property qualifications, as such, have not existed. 
The attempt to apply satisfactory tax requirements so as to 
debar citizens who lack interest in affairs of state, has been 
a little difficult for this reason : political parties have gladly 
paid the delinquent tax in return for continual allegiance, 
and the provision has thus often worked for worse, instead 
of better, government. 

The most common disqualifications are idiocy, insanity, 
and conviction without pardon for an infamous crime. A 
few states debar inmates of public institutions, especially 
in local elections. 

519. Woman Suffrage. — During the last half century a 
notable work has been done by active and well-organized 
forces to obtain greater justice for woman in the courts and 
recognition at the polls. There is scarcely a state which 
has not at some time submitted to the people a constitu- 
tional amendment giving women the same voting rights as 
men. These efforts have produced results of two kinds: 
(i) In twenty-one states a limited suffrage has been granted, 
covering usually school and library elections, but in Kansas 
including all those in cities as well. (2) Four states make 
no distinction whatever between men and women as elec- 



Suffrage and Elections 427 

tors: Wyoming, which has had woman suffrage since 1870, 
Colorado (1893), Utah (1895), and Idaho (1896). 

520. Improved and Suggested Means of ascertaining the in elections 

Popular Will. — Not only has there been a decided tendency f"^ f ""•^'^* 
"^ ■' ■' legislation. 

toward placing the suffrage upon a more substantial basis, 
but what was equally necessary, laws have been passed for 
the purpose of registering more accurately the wishes of 
the people. These cover almost the whole field of elec- 
tions, including the registration of voters, the ballot, quali- 
fications of candidates, with checks upon them to prevent 
the use of money for corrupt purposes. They go farther 
and seek to perfect means of expressing the popular will. 
Proportional and minority representation have been pro- 
posed and, to some extent, used to limit the undue power 
of majorities. The referendum and the initiative have 
been extended to permit voters to express their preferences 
directly upon different parts of legislation. A beginning 
has also been made in the control exercised over political 
parties, especially in connection with primary elections, 
but incidentally for the purpose of obtaining better 
nominations. 

521. Preelection Requirements. — Almost all of the states Registration. 
now require registration of the voters a definite time before 

each election, at least in the larger cities. The need of 
having a list of voters, which might serve to prevent double 
voting, was especially manifest in those cities where popu- 
lation was particularly dense. As the election officers could 
not be acquainted with a large proportion of the voters, it 
was possible for men to vote in more than one precinct 
without being easily detected. Under a strict registration 
law proofs of naturalization are always required, and no 
person can register in more than one place with impunity. 
Naturally, he can vote only in the precinct where he resides, 
and there is no difficulty in preventing his voting more 
than once at the polling booth. 

The reform of elections is interwoven with the control of Primaries, 
primaries and the subsequent influence upon party nomina- 



428 



The American Federal State 



Qualifica- 
tions for 
office. 

Stimson, 
Anter. 

Statute Law, 
I, §§ 220-233. 

History of 
the ballot, 

Spofford, A. 
R., in Lalor, 
I, 197-199- 



Introduction 
of the Aus- 
tralian 
ballot. 



tions. The discussion of this all-important subject is post- 
poned because it properly belongs to the control of parties 

(§§549-551)- 

Qualifications of ofifice-holders elected by the people are 
prescribed by many state constitutions, but there is little 
uniformity in the requirements throughout the country, 
except in forbidding any person to hold two positions of 
profit. 

522. The Ballot. — For half a century voting by ballot 
has been practically universal in the United States. Vir- 
ginia and Kentucky were the last states to discard the older 
form of viva voce voting, the latter within a few years. 
The ballot was first introduced in the Puritan colonies in 
the seventeenth century, and at the time of the Revolution- 
ary War was in use in more than one-half of the states. It 
was gradually adopted by all of the others, but until re- 
cently was very imperfect in form. Separate ballots were 
usually printed for each party, there being no special uni- 
formity and practically no state supervision. The ballots 
were deposited in boxes which might be kept by the elec- 
tion officers where they pleased. There were few safe- 
guards to prohibit a person from voting "early and often," 
so that " stuffing " the ballot box and altering the returns 
were common to an extent almost incomprehensible to-day. 
As party workers were allowed to come into the polling 
places with voters, they had little difficulty in ascertaining 
which way the man voted. Intimidation was therefore 
common, and bribery was considered as a matter of course 
in all close elections. So great was the need of change 
that it is surprising that the abuses were endured so long, 
but the avidity with which the states adopted ballot reform 
within the closing decade of the nineteenth century shows 
that everywhere the times were ripe for improvement. 

523. Ballot Reform. — A modification of the ballot used 
in Australia has been adopted by practically all of the 
states. It was introduced first in Massachusetts, in 1888, 
and proved so satisfactory that the popular demand for it 



Suffrage and Elections 429 

was irresistible. All of the names of candidates appear Wigmore, 

upon a single large sheet, which is printed by proper ^«-^^'»^«'*'» 

authorities. Copies of this are usually distributed to the 

voters before election so that they may become familiar 

with all of the persons nominated for office. The names 

are arranged in one of two ways : (i) All of the candidates 

for each office are grouped together, with a blank square 

left after each name. The voter indicates his choice by 

making a cross in the space opposite Jthe name of the one 

for whom he wishes to vote. If he marks two names for 

one office, he loses his vote, as he does if he fails to place 

a cross opposite any name. (2) All of the nominees of 

each party are placed in a column by themselves, a blank 

space being left after each name and at the head of the 

column. If the voter desires to vote a "straight ticket," 

i.e. for members of one party only, he places the cross 

opposite the name of the party, otherwise he must mark 

the individuals of his choice. It is perfectly evident that 

the second method makes it easier to vote a strict party 

ticket. 

524. Polling the Votes. — The polling places are selected How votes 

by the authorities: and election officials, including usually a^^ecast- 
; J . o / counted, and 

clerks to keep records of the persons voting, and judges and canvassed. 
inspectors to take charge of the polls, are all chosen accord- ^ a a 
ing to law. Each party is permitted to have "watchers," citizen's 
who are allowed to be present when the votes are cast and •^'*«''^A 
counted, and who may challenge any voter. Where proper 
regulations have been adopted, no partisan worker is 
allowed to remain within a certain distance of the polls, 
so that it is difficult to control any voter directly. 

The voter gives his name to a clerk, who looks it up in 
the register while others record the name and address and 
the number of the ballot given the voter. In a small booth, 
perfectly secluded, the persons of the voter's choice are 
indicated, the ballot is folded, and then handed to another 
official, who first tears off the number and calls it out so 
that the recording clerks may note that the person has 



100-112. 



430 The American Federal State 

voted, then deposits the ballot in the box prepared for it. 
The polls are usually open from sunrise to sunset or 
from 6 A.M. to 6 p.m., but never for more than one day. 
When they are declared closed, the inspectors count the 
votes and send the announcement of the vote, with the 
ballots, to the proper authorities. These announcements 
are called the unofficial vote. The ballots are afterward 
counted, or canvassed, by designated state or county offi- 
cials, and then the official vote is given out sometime after 
the election. 
Attempted 525. "Corrupt Practices" Acts. — Unless bribery can 

prevention of ^^g prevented, all regulations are useless. One object of 
corruption, changes in the ballot and election laws has been to reduce 
the opportunities for buying votes, and to make their sale 
J. J., on unprofitable. Some states have gone farther, and require 
Venal Voting, ^ candidates to make, under oath, an itemized account 

in PoKU^7t 

XIV (1892). of all moneys expended by them in connection with the 
campaign. The futility of these provisions to attain the 
end intended is acknowledged on all sides. So long as 
practically all of the campaign expenses are borne by the 
various party committees (§§ 542-545), and these com- 
mittees are not obliged to show for what the money was 
expended, the result cannot be satisfactory. If suitable 
laws can be enforced, it will mean a very great gain for good 
government; but the control of the financial affairs of the 
political parties is a task of no little difficulty. 
Justice of 526. Plans actually used for Minority Representation. — 

proportional ^pj^g gj^^ -y^ view in the adoption of the election safeguards 
tion. just mentioned is "a fair ballot and an honest count "; but 

Commons ^ reform more radical in its attempt to give a truer repre- 
Prop. Repre- sentatiou is that embodied in what is known as proportional 
sentatwn, representation. The injustice of compelling good-sized 
minorities year after year to be without a fair representa- 
tion in the government, and perhaps without any, or pos- 
sibly without the prospect of obtaining any, should appeal 
to the average American as in opposition to the spirit, if 
not the form, of our institutions. Nevertheless, little use 



Suffrage and Elections 431 

has been made of any plans for representation of different 
political views in proportion to numbers of those holding 
them, although many such plans have been suggested. 

To a limited extent the "cumulative" vote and the The limited 
" limited " vote have been adopted. The limited vote is ^°^*^* 
used in the following way : if there are eight members of 
a board of education to be elected on a general ticket, 
i.e. by the city at large, then, by the limited vote method, 
each voter may cast his ballot for five, but no more. In 
practice this has led each party to nominate only five 
candidates, the majority party electing its five and the 
minority party the three highest on its ticket; but the voter 
has been able to choose from only ten names for eight posi- 
tions, unless independent candidates are in the field, so that 
the character of the nominations has not been improved. 

The cumulative vote also requires a district large enough The cumuia- 
so that several persons are elected from it. Each voter has 
as many votes as there are offices to be filled, and he may 
cast all of these for one person or for different persons, as 
he likes. This is the Illinois method already described 
(§ 281). The principal objection to it is that the minority 
party is often able to choose a majority of the representa- 
tives, because some candidates are sure to have a good 
many more votes than they need, and these are wasted. 

527. Improved Proportional Representation. — Other plans. Prof. Com- 
theoretically more perfect, are so complicated that they are i"0"ss plan, 
practically useless. The one which seems most likely to Commons, 
prove satisfactory uses the cumulative vote, but combines mentation ^' 
other features with it. Each party nominates a ticket of 105-114. 
candidates equal in number to the offices to be filled or cf. Good- 
a less number. Independent tickets are also permitted, now, Munic- 
The elector has as many votes as there are positions, and j^^^ ^°_ 
he may place those where he pleases, cumulating them or 167. 
not as he prefers. When the ballots are counted, the total 
vote cast for all the candidates is divided by the number 
of offices, and the resulting quotient gives the number of 
voters that will elect one candidate on the average. This 



432 



The American Federal State 



Use with con- 
stitutions, 
state and 
local laws. 

Cleveland, 
Democracy, 
177-190, «io- 
241. 



quotient is divided into the whole vote cast for each ticket, 
and the number of representatives to which each ticket is 
entitled is thus obtained. Those standing highest on each 
ticket which is entitled to representatives are elected, the 
number of representatives of course depending on the 
ticket's vote. 

Assume the election of seven members of a board of education with 
four tickets in the field. If the total vote for the candidates of ticket 
I is 126,453, for those on ticket II, 112,310, for ticket III, 97,364, and 
on number IV, 52,128, the total vote would be 388,255. Dividing by 
seven we get a quotient of 55,465, the average vote for each ofhce. 
We then get : — 

I 126,453 -=- 55,465 = 2 and 15,523 over. 
II 112,310 -4- 55,465 = 2 and 1,380 over. 

III 97,364 -f- 55,465 = I and 41,899 over. 

IV 52,128 -7- 55,465 = o and 52,128 over. 

As there were seven offices to be filled, and the quotients added 
together give but five, the other two belong to the tickets having the 
highest remainders. That gives two for ticket I, two for II, two for 
III, and one for IV. So the two candidates on number I receiving the 
highest number of votes on their ticket are elected, and the others in 
the same way. 

528. The Referendum. — The referendum, or popular 
ratification of laws, has existed, in some form, within the 
United States since the period of the Revolution. It 
was at first restricted to constitutions, with constitutional 
amendments added but little later. Before 1840 it had 
been introduced in connection with certain local laws passed 
by the state legislature, which became valid if approved by 
a specified per cent of the voters in the district to which 
the law applied. For example, the vote of a county may 
be necessary upon such subjects as the division into two 
or more counties, location of the county seat, the sale of 
bonds for various objects, and upon the sale of liquor. In 
many states cities are never incorporated without popular 
vote, nor are districts annexed to a city without their con- 
sent. More and more the city councils are being restricted 



Suffrage and Elections 433 

in the appropriation or borrowing of money, unless they 
have first called special elections and obtained the consent 
of the voters. 

Rarely, if ever, does the vote on any question affecting state consti- 
tutions, charters, or local laws equal that for the choice of officials at 
the same elections, and usually from one-quarter to three-fourths of 
the voters fail to record their preferences. 

529. The Initiative. — The initiative is the right of a Limited use 
certain portion of the voting population to propose laws. °/ ^^ \vi\w^- 
There are two forms in this country: the one little more 

than a petition by which the legislative body is compelled fol^p^%ie 
to act upon some subject desired by the people; the other 279-283. 
demanding a vote, not of the legislature, but of the peo- oberhoitzer, 
pie, upon the proposed measure. By the second, or Swiss Referendum 
method, the legislature has nothing to do with making the 3 3 3 9- 
law. Like the referendum, the initiative is the natural, 
almost inevitable, product of democracy, and comes nearer 
to giving government by the people than anything outside 
of the town meeting yet tested. An early instance of its 
use is furnished in the method of amending the first con- 
stitution of Georgia (1777). This could be done only by 
a convention called on petition from a majority of the 
voters in a majority of the counties. But the initiative has 
not thrived like the referendum, and is in use comparatively 
little at the present time. Some of our cities, notably San 
Francisco, provide that when fifteen per cent of the voters 
desire a law, the board of supervisors shall submit it at the 
next election. Nebraska permits the initiative for certain 
local matters, and South Dakota places it in the hands of 
five per cent of the voters for state laws. 

530. Advantages of Direct Legislation. — The indirect Referendum 
influence of the referendum can only be imperfectly esti- as a check on 

•' _ ^ ^ representa- 

mated, but it has certainly acted as a serious check upon tives of 
constitutional conventions and more permanent legislative people, 
bodies. Moreover, it has educated the people concerning 
the nature of our political institutions, because they are 

2F 



434 



T^he Ar/ierican Federal State 



Parsons, 
City for 
People, 275- 
278,362-370. 



Referendum 
in financial 
matters. 



Good influ- 
ence of the 
initiative. 



Law-making 
requires 
special train- 
ing. 



more interested in those things in which they take part. 
When used for local affairs it guarantees local autonomy 
under general state laws which assure a certain necessary 
degree of uniformity. So long as it acts in this way as a 
conservative force, dealing solely with matters of impor- 
tance, it possesses a marked value for both the people and 
the government. 

Where it takes the final decision on matters of finance 
out of the hands of county boards, city councils, or boards 
of public works, it effectually prevents the ofificial corrup- 
tion which has become so common in these days. If the 
granting of franchises is always subject to popular vote, 
there is less danger that corporations can influence the 
government to their own advantage. Until we shall reach 
that desirable condition where not even a fair proportion 
of our representatives "have their price," popular partici- 
pation directly in the affairs of the government, whether for 
city finance or senatorial elections, will be sought as the 
great remedy for political ills. 

The initiative gives opportunity to force legislative 
assemblies to respect public wishes, for it may demand a 
popular vote on the subject presented. The introduction 
of measures in all our legislatures is comparatively easy, 
though after introduction it is difficult to compel considera- 
tion; but the very existence of a means to pass laws without 
consulting the legislature makes that body chary of ignor- 
ing bills that are likely to become laws through the initia- 
tive and the referendum. To protect its own powers and 
preserve its dignity, the assembly is therefore likely to 
itself approve bills that the people desire. For this reason 
it becomes a more truly representative organization. 

531. Disadvantages of Direct Legislation. — There is a 
vast difference between the referendum and the initiative 
as popular checks upon the government and as means of 
actual legislation. The business of government, like any 
other business, requires full knowledge, careful training, 
and wide experience. There are certain features of it that 



Suffrage and Elections 



435 



every adult citizen ought to understand, but to expect that 
each one is fitted to properly perform the duties of law- 
making is more than unreasonable — it is ridiculous. 

The whole number of electors may be able to pass judg- 
ment upon some questions, but the rest should be left to 
trained public servants. If this is not done, the law will 
lose in unity and in character just in proportion as it 
becomes popular. 

A second defect is closely connected with the first. 
When the functions of government are assumed by the 
people, and less dependence is placed on the legislatures, 
less and less care is taken to secure suitable persons to make 
the laws. The truth of this statement is shown in the com- 
position of our state legislatures and city councils, both of 
which have been shorn of many powers during the last half 
century. An extension of direct legislation will aggravate 
these evils, already serious. 



Lowell, A. L., 
in At, Mo., 
LXXIII 
(1894), 520- 
526. 



Direct legis- 
lation leads 
to poorer 
legislatures. 



QUESTIONS AND REFERENCES 

The Suffrage (§§ 516-519) 

a. Follow the changes in the qualifications for voters in England 
during the nineteenth century by consulting Wilson, The State, §§ 
894-900, 962, 992 ; Rose, Rise of Democracy, 49, 178-180, 200-210 ; 
Fielden, Constitutional History, 131-135 ; Taylor, English Constitu- 
tion, II, 527-538. 

1. Is it a modern political doctrine in the United States that adult 
men have an inalienable right to vote ? Why are the voters as a whole 
always opposed to an extension or restriction of the suffrage ? Prove 
from history whether changes have been brought about principally by 
agitation from without or feeling within the ranks of the voters ; and 
if at any time within, why the change was desired. 

2. Compare the advantages of property, religious, educational, or 
other tests with those of manhood suffrage. 

3. Give arguments for and against woman suffrage. In ascertaining 
whether women should be given the franchise, should a vote of the 
women not be taken ? Is it probable that any or many of the adverse 
majorities of the past would have been reversed by such a proceeding 
if the women's vote had been binding ? 



43^ The American Federal State 

i. What amount of property or land was ordinarily required in 
colonial times ? When did the abolition of property tests begin and 
in what state ? What ones had adopted manhood suffrage by 1815 ? 
by i860 ? Appendix F, Table I. 

ii. What state has the most liberal provisions for voters ? What 
one the most restrictions ? Where are the states located that permit 
prospective citizens to vote ? How many ask the prepayment of taxes ? 

iii. What was the suffrage provision of your first constitution ? Trace 
the changes from then to the present. Who may vote in your state 
now ? Who are expressly disqualified ? (State Constitution.) What 
percentage of the qualified electors failed to vote on the last presiden- 
tial election ? the latest local one ? 



Control of Elections (§§ 520-525) 

1. Would there be any advantage of holding national elections on 
different days for different parts of the country ? Why should they be 
restricted to a single day ? 

2. Should an election board ever be composed entirely of a single 
party ? If so, why ? Are there any reasonable objections to compel- 
ling campaign committees to report their expenses ? to restricting the 
amount they may spend ? 

i. When was a reform ballot introduced in your state ? What is 
the form used ? How may nominations be made under it ? Are com- 
plaints of abuse common ? 

ii. In what precinct do you live ? How large is it ? How many 
voters does it contain ? Where is the usual polling place ? Have 
ballot machines ever been tried ? 



Proportional Representation (§§ 526-527) 

1. Can we have proportional representation without election upon 
a general ticket ? Would election of representatives in the House of 
Representatives or in either branch of the state legislature be as satis- 
factory by large districts each of which choose several members as the 
present method seems to be ? Are the greatest difficulties in intro- 
ducing proportional representation theoretical or practical, and what 
are they ? 

2. Would not proportional representation lead to better govern- 
ment even if the character of the candidates was not greatly improved ? 
Name at least two reasons why the tendency would be to get better 
men. 



Suffrage and Elections 437 



Direct Legislation (§§ 528-531) 

a. On the future of democracy, compare the views given by Macy, J. 
"Twentieth Century Democracy," mP. S. Q., XIII (1898), 514 etseq.; 
Vrooman, C, " Democracy of Twentieth Century," in Arena, XXII 
(1899), 584 et seq.; Godkin, Problems of Modern Democracy, 275-310; 
Giddings, Democracy and Empire, 197-214 ; Hyslop, Democracy. 

1. Will the referendum be more or less used in the future ? Why ? 
Is it desirable that we should have more democratic government than 
at present ? 

2. Can direct legislation be applied to national affairs ? If so, to 
what extent ? Should the referendum be used in amending the national 
Constitution ? If the referendum and the initiative were used in the 
cabinet form of government to keep the government in constant touch 
with the voters, what would be the probable effect in England ? 

i. What forms of the referendum have you in connection with state 
affairs ? Are the voters consulted in changing county lines ? county 
seats ? incorporating villages ? What laws regarding finance are first 
approved by them ? What other laws, county or local ? Is the initi- 
ative in use for any purpose whatever ? Is it the Swiss initiative with 
compulsory referendum ? 



CHAPTER XXIII 

THE POLITICAL PARTY 
General References 

WiWoughhy, J?igAts and Duties of American Citizenship, 297-310. An 
excellent summary. 

Bryce, The American Commonwealth (abd. ed.), 447-477; third regu- 
lar edition, II, 1-246. The latter a description of its actual work- 
ings, with keen criticisms. 

Dallinger, Notninaiions for Elective Office. Gives the history of nomi- 
nating conventions, methods at present, defects of the system, and 
proposed remedies, with bibliography. Very valuable. 

Remsen, Primary Elections. A good brief presentation of the whole 
party system. 

Lawton, The American Caucus System. 
The historical side is emphasized in 

Patton, Political Parties in the United States. Discursive. 

Tyler, Parties and Patronage. 

Stanwood, A History of the Presidency. Issues and platforms in each 
presidential campaign. 

McKee, N'ational Cottventions and Party Platfortns. Documents only, 

Hopkins, History of Political Parties. 

Johnston, American Politics. The work of the different Congresses. 

McClure, Our Presidents, and How We Make Them. Largely per- 
sonal reminiscences. 

Ford, H. J., Rise and Growth of American Politics. A brilliant study 
of causes and effects. 

Johnston, in Lalor, under Names of Parties. 

Periodical literature indexes under Political Party, Caucus, Primary, 
Convention, Machine Rule, Nominations, etc. There is an im- 
mense amount of material referred to under title United States 
History. 

532. The Place of the Political Party in our Political Sys- 
tem. — It is scarcely too much to say that if government is 

438 



The Political Party 439 

the political organization that carries out the wishes of the The party an 
State, parties are almost as much the organizations that ^^s^^tiai part 

^ '^ of the ma- 

control the government. There is scarcely a law made, an chiuery of 

official chosen, or a policy discussed concerning which the government. 

political party does not exercise the predominating influence. 

This country does not have party government in the sense 

that the conduct of all affairs, national, state, and local, are 

intrusted to a single party organization, which carries out 

its plan for the whole system of governments; but it does 

have party government in the sense that the political party 

stands between the people and the government, and that the 

representatives of the party which has the majority in any 

government, or has been indorsed by the majority of the 

voters, control affairs until they are turned out and the 

representatives of a second party installed. 

It is the intention in this chapter to summarize very 
briefly the history of parties, give some idea of the parti- 
san methods in use, to show the legal status and respon- 
sibility of the party, and means suggested to gain better 
results from party government. 

533. The Federalists. — The history of our political par- Party history 

ties is, to a considerable extent, identical with the political ^"^ political 
' ' *^ history mter- 

history of the United States; but a clearer conception of the woven. 

work done or policies advocated by the different ones may 

be given by considering a few points purely from the 

standpoint of party. 

There was no attempt to organize the adherents of differ- Policies of 

ent theories or opinions during the early years of Washing- I'^derahsts. 

ton's administration, and the first parties grew out of the Johnston, in 

personal differences of Hamilton and Jefferson (§ 151). x6<,-\n2. ' 

The Federalist party, which remained in power till 1801, 

was distinctly English in views and policies. It stood for 

three things : a strong central government, rule by the aris- 1 

tocracy, and alliance with the commercial classes. The. 

last two placed it out of touch with a people devoted to 1 

agriculture and favoring democracy; and the Federalist 

power, once broken, was never regained. 



440 



The American Federal State 



Federalist The Federalist strength was derived from the New England and the 

strength. smaller Middle states, upon some of which the party retained its hold 

for two decades after the presidency passed out of its hands. In 
the Senate it was never able to make a showing after 1801, but in the 
House a fair-sized and active minority continued to oppose the gov- 
ernment until Monroe's second term. 



Democratic- 
Republican 
principles. 

Johnston, in 
Lalor, I, 
769-774. 



Changes in 
the Democ- 
racy. 

Johnston, in 
Lalor, I, 
774-779- 



534. The Democratic-Republican Party. — While the party 
of the opposition, the Democratic-Republicans favored the 
restriction of national power, rule by the people, the pre- 
dominance of agricultural interests, and, in foreign affairs, 
the French. With the election of Jefferson, in 1801, they 
abandoned in part their adherence to a strict construction 
of the Constitution, but they never ceased to prefer the 
agricultural sections to those devoted to commerce. Once 
in power, they were able to keep the Federalists out by 
reason of a broader national policy, and because both the 
admission of new states and the more liberal suffrage in the 
others increased their strength continuously. In the end 
they carried every state, as is shown by the result in the 
presidential election of 1820. 

535. The Democratic Party (1824-1852). — In the very 
nature of things, when there is no pressure upon an organi- 
zation from without, disruption is sure to follow, and this 
was what happened in the Democratic-Republican party in 
the years following 1824. The election of that year, and 
the subsequent contest in the House of Representatives 
over the choice of a President (§ 171), produced an alli- 
ance of the loose construction elements that followed Clay 
and Adams, giving them control of the government for a 
time. But when Crawford withdrew from politics, and his 
adherents went over to Jackson, the personal popularity and 
magnetism of " Old Hickory " produced a new Democratic 
party, like the old one, in being truly democratic and anti- 
commercial, but broader and more national. In a country 
still largely devoted to agriculture, it was not difificult for 
the Democrats to keep the government in their hands most 
of the time from 1826 to 1852. 



The Political Party 441 

The parties of this period were not so sectional as those that pre- Successes of 
ceded and followed them, but in the main the Democratic party held ^''^ Demo- 
most of the South, the extreme West (of that day), and part of the ^^""^ ^* 
Middle states. The Supreme Court never contained a large number 
of anti-Democratic judges, and only for four years did the Democrats 
lose either Senate or presidency. 



536. The Whigs. — The Whig party grew out of the Political 
National Republicans or loose construction element of the ^*^!^^^^ 
Democratic-Republicans. This reorganization took place 



between the years 1824 and 1832, and was largely due to Laior iii"* 
the influence of Henry Clay. The chief principles empha- 1001-1008. 
sized by the Whigs were protection to home industries 
and internal improvements. They generally controlled the 
New England and small Middle states, besides Kentucky 
and Tennessee; but the policy which might have given 
them the West, i.e. internal improvements, was less- neces- 
sary after the advent of the railroad, so that the Northwest 
usually went to their opponents. Once, and only once, 
they had the presidency, the Senate, and the House within 
their grasp; but the death of President Harrison and the 
inauguration of the radical Democrat Tyler blasted all 
their hopes. 

537. The Second Reorganization (i 852-1 860). — After The slavery 

18150 there was only one really live political issue — that question m 

, . , , , pohtics. 

of slavery — and, in spite of themselves, the parties were 

obliged to adapt their platforms and policies to it, after Laior *i"' *" 
in vain trying to keep it out of politics. The Whigs held 779-782; ill, 
antislavery views, on the whole; but, especially after the 597-599- 
crushing defeat of 1852, could not rally enough Northern Stanwood, 
members to form an antislavery party. They therefore prelidenof 
disappeared and, after 1854, the anti-Nebraska, or, as it 244-297. 
was a little later called, the Republican party, united the 
antislavery forces. The Democrats managed for a time to 
keep all the pro-slavery elements and, in addition, main- 
tained their organization in the North by favoring popular 
sovereignty; but in i860 the clash between North and 
South broke even that party into two wings. 



442 



The American Federal State 



American 
party. 

Johnston, in 
Lalor, I, 85- 
87. 



Policies and 
victories. 

Johnston, in, 
Lalor, I, 
782-788; III, 
599-603. 



Meanwhile, those who were unwilling to take sides on the slavery 
question organized a widespread secret society, popularly known as 
the " Know-nothings," from their unwillingness to betray their secrets. 
Its principal object was to keep foreigners from obtaining citizenship 
or holding office until after a residence of twenty-one years. Before 
the slavery question became very acute, this party was able to carry 
several states, and in 1856 and in i860 it polled a large vote. 

538. The Parties since i860. — Brought into power, in 
i860, by the dissensions in the Democratic ranks, the 
Republicans remained in possession of Congress till 1875, 
and of the presidency till 1885. Since those dates it has 
shared both legislative and executive departments with the 
Democratic party, each having the presidency eight years 
and control of the House for nearly equal periods, 
though the Senate has been Republican most of the time. 
Before 1880 the parties were divided principally over 
issues arising from the War of Secession; from 1880 to 
1892 the question of the tariff was most prominent; from 
1892 to 1898 the silver difficulty absorbed popular atten- 
tion; and since 1898 the problems growing out of the 
Spanish-American War have been given first place. 



Policies be- 
fore 1876. 

Stanwood, 
Presidency, 
298-356. 



Presidential 
election of 
1880. 

Stanwood, 
394-418. 



In the elections from 1866 to 1876 the important topics dealt with 
home manufactures and paying the debt in coin, these being pro- 
claimed by the Republicans, and incorporated into the laws. The 
opposition was not well organized nor united except in opposing the 
Republican administrations. While the carpet-bag governments con- 
trolled most of the Southern states, even flagrant abuses of power by 
the Republicans did not lead to national Democratic majorities; but 
as the whites gradually regained the ascendency in the reconstructed 
states, and federal forces which had controlled elections were with- 
drawn under Hayes, there was welded together a " solid South " that 
has never yet been broken except on the northern border. 

539* '^^6 Tariff Campaigns. — The interest in the campaign 
of 1 880 centres not so much in the struggle between the parties, close 
as that was, as in the factional contest in the Republican convention 
between the followers of James G. Blaine and the adherents of Grant, 
who sought to nominate him for a third term. After many futile bal- 
lots, the Blaine men rallied to the support of James A. Garfield, a 
" dark horse," but during the campaign he received only half-hearted 



The Political Party 



443 



support from the Grant, or better, the Conkling wing, and after the 
inauguration there was an open rupture between the two that had a 
considerable influence for several years. The question of the tariff 
was not raised at first, but just before the election the Republicans 
denounced the " free trade " propositions of the Democrats with tell- 
ing effect. The result was the election of Garfield and Arthur. 

Four years later, the Republicans came out more pronouncedly for 
"protection," while the Democrats favored "tariff reform." For the 
first time in twenty-five years the Republicans were defeated, the elec- 
tion of Cleveland over Blaine being due principally to the support 
which the former derived from the independent Republicans and the 
failure of Conkling to come out for Blaine. 

In 1888, and again in 1892, the election turned more than in any 
previous years upon the question of " protection " or " tariff for rev- 
enue only." The platforms were more explicit than in former cam- 
paigns, and the candidates were the same in both years, Cleveland 
being nominated by the Democrats and Benjamin Harrison by the 
Republicans. In 1888 the Republicans secured not only the presi- 
dency, but small majorities in both houses. This enabled them to 
carry through several party measures which were not approved by the 
voters in either 1890 or 1892, Cleveland being elected in the latter 
year by fairly large pluralities in the states, but a very large majority 
in the electoral college. 

540. The Campaigns of 1896 and 1900. — Beginning in 
1890, there had arisen in the West a new party, whose avowed object 
was to secure from the national government legislation that would 
directly benefit the agricultural classes. A large vote was polled in 
1890, and in 1892 twenty-two electoral votes were secured in the 
electoral college. The hard times after 1893 ^'^^ the anti-silver 
actions of the government at Washington united the West in favor 
of the free coinage of silver as the best means of securing the desired 
legislative relief. So strong was this movement that in 1896 it con- 
trolled the convention not only of the People's party, but of the Demo- 
cratic party as well, both of which nominated William J. Bryan for 
President, and demanded the free coinage of silver at the former legal 
ratio of sixteen to one. The Republican convention, held before either 
of the others, nominated William McKinley, and favored international 
bimetallism, but sought to subordinate the silver issue to that of pro- 
tection. In the November election the East supported the Repub- 
lican ticket and the West the Democratic candidate, without much 
regard to party. The majorities in the manufacturing states for the 
one, and the mining states for the other, were unprecedented, but 
the electoral majority for the Republicans was nearly one hundred. 



Election of 
1884. 

Stanwood, 
419-449. 



Elections of 
1888 and 
1892. 

Stanwood, 
450-518. 



People's 
party and 
election of 
1896. 

Stanwood, 
519-569- 



444 



The American Federal State 



The cam- 
paign of 1900. 



Minor parties 
since 1870. 



The same nominees ran in igcxD as in 1896, but the silver issue was 
subordinated to that of "imperialism." The Republicans indorsed 
their acts legally establishing the gold standard, and declared them- 
selves in favor of holding and governing the possessions acquired in 
the treaty of Paris (1898). The Democrats again indorsed free silver 
coinage at the ratio of sixteen to one, but asserted that " imperialism 
is the paramount issue," and that the United States should merely 
assure to the inhabitants of the colonies the right of self-government. 
Bryan was also nominated by the Silver Republican convention and 
one of those held by the People's party; but, although the state 
pluralities were almost everywhere more uniform, the Republican 
majorities were greater than in 1896. 

Since 1870 the Prohibition party has always had nominees, while 
the Labor party dates from about the same time. The Socialist Labor 
party and the Social Democrats usually have tickets in the field, and 
the non-fusion Populists nominate separate candidates. The only 
minor parties which have polled large votes were the Greenback 
party in 1878 and the People's party from 1890 to 1894. 



A gloomy 
view. 



Three tasks 
performed 
for the mem- 
bers of a 
party. 



541. The Work of a Party. — A great many pessimists 
would undoubtedly say that the work of the political parties 
consists in controlling the governments for the sake of the 
patronage or "spoils of office." Unfortunately, there is 
considerable truth in the statement; but it is true because 
of abuses which have been, and can be, remedied. 

Whatever the motives of the parties may be, the people 
desire to express their wishes through them ; and in order 
that this may be possible each party must do three things : 
(i) It expresses the views and formulates the principles of 
the groups of persons who, because they think alike, form a 
certain party. This is done presumably in the platform, 
which is elaborated and explained during the campaign. 
It is expressed more honestly and exactly by the laws made 
after the election, if the party has a majority sufficient to 
permit unaltered partisan measures to be passed. (2) The 
party furnishes the machinery by which its members may 
nominate candidates for elective offices, thus insuring to 
the party voter a set of persons, of his own political views, 
for whom he may cast his ballot. But as these two pre- 
liminaries are of no practical value, if the other side wins 



The Political Party 445 

at the polls, the party (3) maintains an organization which 
includes every hamlet, but concentrates power so as to 
avoid all possible friction. The true work of this huge 
machine, for such it must be, is to secure the election of 
its candidates by every method it can devise. 

542. The Permanent Party Committees. — At the present Party organ i- 
time the formulation of platforms and the nomination of ^^.''°" • '^°"^" 

^ _ mittees and 

candidates is everywhere performed by conventions, which conventions, 
meet some time before the elections; while the conduct Rgjnsen 
of the campaign belongs to permanent committees, which Primary 
affect so vitally the work of the party that they deserve to ^^^j^^"'^^' 
be considered first. 

Each party has as many sets of these committees as there Complete- 
are kinds of political divisions in the United States, i.e, "o^j^jtteg 
there is a national committee for the country at large, a system. 
committee for each state, one for each county, city, town, 
ward, and, perhaps, assembly district. All of these have a 
great deal of power, but the ones for the smaller territorial 
districts have the most. 

543. The National Committee is composed of one mem- Composition 
ber from each state chosen for a period of four years. The ^" sessions, 
committeemen may be elected by the state conventions 

which invariably meet just before each national conven- 
tion, or by the delegates from the state to the same national 
convention. Their important duties relate to the presi- 
dential campaign. Toward the close of the year preceding 
a presidential election, they hold sessions for the purpose 
of deciding where the convention shall be held. At this 
meeting the claims and attractions of the cities desiring 
the convention are set forth by some popular resident, 
after which the committee announce their decision as to 
when and where the next national convention shall meet. 

For the prosecution of the campaign the committee National 

chooses certain of its members as an executive committee, ^^^^'^"'IIL 

' committee. 

the chairman of the latter having the real charge of the 
campaign, though often not a member of the national 
committee at all. 



446 



The Amei-ican Federal State 



Funds for 
speakers and 
literature. 



Composition 
and tenure. 

Remsen, 
Primary 
Elections, 
37-A:7- 



Work of the 
state com- 
mittees. 



Influence of 
the local 
committees. 



The machine 
and how it 
maintains its 
power. 



Two parts of the work stand out in especial prominence : 
one connected with raising funds, the other with gaining 
votes. Contributions are ordinarily made by interested 
members of the party, some of this going to the local com- 
mittees and some to the national committee. That in the 
hands of the latter is used to pay the speakers selected to 
make tours in doubtful states and to pay for the enormous 
amount of campaign literature and other matter, printed 
under the direction of the executive committee, that is 
scattered broadcast over every state in the Union. 

544. State and Local Committees. — These committees are 
more likely to be on duty constantly than the national com- 
mittee, for local and state elections occur frequently. 
They are made up of representatives from each of the next 
smaller political division; e.g. the state committee is com- 
posed of partisans from the counties, and the city committee 
of those from the wards. The tenure is apt to be shorter 
than four years, but reelection is the rule, except when a 
revolt takes place within the ranks. 

The state committee designates the time and place for 
the state convention, and always seeks to control its organ- 
ization ae well as the nominations it makes. The com- 
mittee also oversees the local committees and takes charge 
of state and congressional elections. 

The importance of the "lowest" committees grows out 
of the personal influence which they exert directly upon the 
voters. They make this felt either at the time the prima- 
ries are held, in order to have each primary choose the 
delegates which the committees desire during the cam- 
paign, by personal work among the electors; or at the 
polls, by bringing the indifferent ones to vote. 

545. The Boss and the Machine. — The hierarchy of per- 
manent committees is usually spoken of as the "machine." 
The term is ordinarily one of disapproval, because most 
machines have the interests of the party less at heart than 
their own advancement. More often than not they have 
become those most undemocratic institutions, " close cor- 



The Political Party 447 

porations," whose real aim is to perpetuate their own power. Bryce, Amer. 
This they do by controlling all of the elective offices and, ^^^^J^T^ 
through them, the appointive ones; but this, in turn, neces- reg. ed.)> n, 
sitates the control of the nominations. Yet, in order to 82-106. 
get their men nominated, they must have the right dele- 
gates, and to obtain these the primaries must be favorable 
to the machine. Accordingly, their chief aim is to conttol 
the primaries, for if they fail completely to gain these, their 
power is gone. As they alone call the primaries and decide 
who may go, the primary usually elects whom they desire. 
But when it hesitates, the machine has often resorted to force 
or fraud to carry out its programme. So absolute has the 
power of the machine over the primaries become in many 
large cities that the citizens are unwilling to attend, and 
the politicians have everything their own way. 

The "boss" is the person who dominates the machine. The boss. 
or the part of it in his district. He is ordinarily a keen gi-yce, Amer. 
student of nature and a shrewd, energetic man of affairs. Common- 
Boss rule is objectionable principally because it represents '^'"^_ ' ' 
an extreme form of dictatorial power without the least 
chance of enforcing responsibility. 

546. The National Convention : Composition and Organiza- Election of 
tibn. — The temporary, as distinguished from the per- ^^^'^e^*^^- 
manent, organization of the party is represented by the Daiiinger, 
nominating convention. For the national convention the y^^ Elective 
call, as stated above, is given about six months before Office, 74-78. 
the convention meets in the early summer of the presiden- 
tial year. The number of delegates is twice that of the 
senators and representatives from each state; and although 
the whole of a state's delegation may occasionally be chosen 
by a state convention, summoned for that purpose, the cus- 
tom is to have the state convention choose four delegates 
at large (corresponding to the two senators), and have con- 
ventions in each congressional district appoint two dele- 
gates, besides the alternates who are to serve in case of need. 

Before the convention is called to order by the chairman Preliminary 
of the national committee, each state delegation holds a '^^^^^^' 



448 



The American Federal State 



Dallinger, 
78-84. 



Report of 
committee 
on resolu- 
tions. 



Nomina- 
tions. 

Dallinger, 
84-87. 



Different 
methods. 



meeting and selects a national committeeman to serve for 
the next four years, and a member for each of the four con- 
vention committees on organization, credentials, rules, and 
resolutions. On the first day the vote upon temporary 
chairman may constitute a test of the strength of the differ- 
ent candidates or policies, but that cannot be definitely 
determined till later, after the report of the committee on 
the credentials of contesting delegations. 

547. The Platform and the Nominees. — About the third 
day the committee on resolutions reports the platform. 
There may be little or no opposition to any of the planks, 
and the motion to adopt be purely perfunctory; or a plank 
may be changed or modified, if it relates to something im- 
portant, or accepted only after heated debate and a fairly 
close vote, as in Chicago in 1896. 

Nominations are then in order and the roll of the states 
is called. Presentation of names is always accompanied 
by complimentary speeches, followed by a second or even 
third laudatory effort. The number of candidates averages 
from eight to ten, most of them favorite sons, to whom 
a small vote is given on the first ballot as a token of 
appreciation. 

In the conventions of the two great parties methods 
differ little except in two respects: the Republicans per- 
mit each delegate to vote as he pleases, and require only 
a majority to nominate; the Democrats have each state 
delegation cast its vote as a unit, i.e. all for the same 
person, and demand two-thirds of the votes before any one 
is chosen. 



Observations 
on historical 
nominations. 



Presidential candidates are occasionally nominated by acclamation, 
as Grant was in 1872 and Cleveland in 1892, or as many as fifty-three 
ballots may be taken, as in the Whig convention of 1852. Where 
several ballots have been cast without result, the nomination has gone 
eventually to some comparatively unknown person who at first re- 
ceived but a small vote or none at all; but invariably when one can- 
didate receives a sufficient number, one of his less fortunate opponents 
moves that the nomination be made unanimous. The work of the 
convention closes with the selection of a nominee for Vice-president, 



TJte Political Party 449 

the position usually going to the leader of some faction or to a partisan 
from a different section from that of the President. 

The later work of the party in connection with the campaign and 
the electoral college has already been considered (§§ 331, 332). 

548. State and Local Conventions. — At the present time Composi- 
practically all the important nominations for elective office, *'°"- 
except those of President and Vice-president, are made by Daiiinger, 
state and local conventions. These are usually large bodies ^ ^' 
composed of several hundred delegates, who are chosen in 
the primaries for city, county, or even congressional dis- 
trict conventions, but for state conventions are selected by 
those of the localities. All of these conventions are called 
by the appropriate permanent committee, the chairman of 
which presides over the deliberations of the conventions 
until their officers are chosen. 

The first duty is ordinarily to appoint convention com- State and 

mittees upon credentials, organization, and resolutions, all ^°'^^^ conven- 
^ ' o J 7 tionsatwork. 

of whom have been selected beforehand by the permanent 

committee so as to facilitate the conduct of business. The .^ I^^^llnr, 

committee on credentials decides which of two contesting 
11 • 1 11 1 1 • 11. . . Remsen, 

delegations shall be seated, its task being similar to that primary 

of the committee on elections in the House of Representa- Elections, 
tives (§ 282). That on organization reports a list of officers, ^'^^' 
including chairman, secretary, and many honorary vice- 
presidents, while the one on resolutions reads a platform 
agreed upon before the convention met. If there is no 
opposition, all of these things occupy little time, and the 
convention then devotes itself to the nomination of candi- 
dates. The machine has always agreed upon a "slate," 
or list of candidates, but there is no outward evidence of 
such preconcerted action except the smoothness with which 
everything is done. Nominations are made for each office 
separately, the merits of the respective candidates being 
extolled. If but one person is suggested for the position, 
no formal ballot is taken, otherwise balloting continues 
until some one has a majority of all the votes cast. When 
all the nominations have been made, the convention ad- 

2G 



450 



The American Federal State 



The citizen 
and the 
primary. 

Remsen, 
48-58. 

Dallinger, 
95-126. 



Need of re- 
formed pri- 
maries. 

Remsen, 
91-98. 



journs, the length of its session having depended, to a large 
extent, upon how well the machine has it in hand. 

549. The Primary. — A primary is a mass meeting of the 
party voters, in a definite locality, called by the local com- 
mittee for the purpose of selecting nominees for office and 
delegates to party conventions. When once the electors 
have started, in the primaries, the machinery by which 
platforms are constructed and nominations for all offices 
are made, they stand aside until, on election day, they may 
choose between the candidates of their own party or those 
of another. As the election may offer but a choice between 
two unsatisfactory men, the voter may be compelled to exert 
an influence in the primary or not at all. But, as we have 
already seen, in the primary he must fight the machine; 
and to the machine the control of the primary is a matter 
of life or death, unless it is working for the public good and 
not for private gain. Yet the strangest thing of all is, that 
the citizen ordinarily makes no effort to assert his rights at 
this point, where it might have some effect. Usually he 
stays away; but when he goes, more often than not he offers 
no opposition to machine dictation. Perhaps this is due 
to his belief that protest is futile, possibly to lack of 
organization in the anti-machine element, but probably to 
indifference. He may even support the "slate" proposed 
because it contains two or three good names placed upon it 
to tempt the waverers, while the others he does not know. 
Whatever the reasons may be, it is a fact that never, for 
any length of time, in any of our large cities, has the 
machine loosened its hold upon the primary, while even 
in rural districts the organization is complete and the 
primaries more or less under machine rule. 

550. Reform of the Primary. — The importance of the 
primary to pure politics is so generally recognized that 
numberless suggestions have been offered of means for 
making it serve the purpose it was intended. It must be 
apparent that improvements in the suffrage, in the ballot, 
and in the elections themselves must be more or less worth- 



The Political Party 451 

less if the primaries remain unreformed. These other 
things touch the surface and perhaps deceive us by the 
good appearance they make; but the primaries are the 
heart of the body politic, and, if they are corrupt, it cannot 
be different. Reform so far has made little progress, as 
the machine primary, like old Proteus, has a wonderful 
capacity for changing its form and eluding our grasp. 

551. Public Control of the Primaries. — Effort has been The problem 
principally directed toward bringing the whole system of °^PJ^^|i^ 
nominations under the control of the state. Laws have 
been passed relative to the times primaries shall be held, i^ondnaiions 
those who shall take part in them, the polling and counting 183-189. 
of the votes, and the holding of subsequent conventions. 
The subject is of such vital interest to the welfare of the 
community and the preservation of its popular government 
that state control is theoretically indispensable if abuses 
exist, which we are not blind enough to doubt. But the 
problem is just as complex after the state endeavors to solve 
it as before. For example, shall the state lay down a rule 
to determine who shall vote at the Republican and Demo- 
cratic primaries, or shall it leave that difificult question to 
the party ? If to the latter, what is to prevent a committee 
from restricting the right to vote in its own interest? If 
by the state, what shall the rule be? Several have been 
tried. One makes it necessary for the voters to register 
with some party at the previous election, but such public 
allegiance has more than once endangered business posi- 
tions. Another gives each voter at a public primary election 
ballots for all the parties and allows him to cast whichever 
one he wishes, but it permits followers of one party to vote 
the other ticket for the express purpose of selecting unfit 
men as delegates and candidates. A third makes it depend 
upon whether the elector supported the candidates of the 
party at the last election or will at the next one, but with a 
secret ballot the test must be imperfect. All this, however, 
is by way merely of illustration, giving some sidelights on 
just one side of one problem. As a matter of fact, few 



452 



The American Federal State 



Vast extent 
of public 
patronage. 



States have done much in regulating primaries or other 
party meetings, and most of those leave this particular ques- 
tion of who may vote in the primaries to the parties them- 
selves. None of the laws have done more than abolish 
"snap" primaries, i.e. those called on insufiScient notice, 
and guarantee fair treatment to the rank and file. The 
primary is still Proteus. 

552. Importance of Nominations. — It is scarcely neces- 
sary to call attention to the close connection between sat- 
isfactory nominations and good government, but a brief 
summary of the number of elective offices, and the appoin- 
tive ones that belong to them, may give us a clearer idea 
of the need of the best methods. There are less than 500 
persons elected by the people who are connected with the 
national government, yet those 500 have at their disposal 
over 100,000 appointments, many of them to first-class 
positions. Less than 100,000 regular paid officials are 
elected by the voters in our states, counties, cities, towns, 
and other local districts, but probably between 200,000 and 
250,000 persons besides those in the schools are appointed 
in these same governments, very few of whom are selected 
solely or chiefly because of ability. Thus, at present, 
patronage running up into hundreds of millions a year is 
the reward not so much of the persons elected as of the 
power behind the throne — the machine. The immense 
influence wielded because of the control over so many 
places, coupled with the advantages that naay be derived 
from handling $1,000,000,000 a year for other purposes, 
has developed and maintained the machine organization. 
The temptation to turn these party organizations into close 
corporations has, consequently, been too strong to be re- 
sisted, except in the rural districts and a few urban ones, 
and the committees that were meant to serve their party 
have more often come to dominate it. Their control may 
be partially loosened by bringing state and local positions 
under civil service rules, but can be removed by leaving the 
committees only a just share in the privileges of nomination. 



The Political Party 453 

553. Direct Nominations. — The convention system of Nomination 

nominations has been used so long and so universally that ° candidates 
it seems indispensable; yet many favor a change for the 

purpose of obtaining more satisfactory candidates and 59-63. ' 

reducing the influence of the machine. These results, it ^ „. 

° Dallinger, 

is claimed, have been, and can be secured, through a 127-130. 
method of direct nominations tried in the localities of a 
few states. The general principle underlying the plan is, 
that the people vote directly upon the candidates for nomi- 
nation. Any one who can get a certain number of signa- 
tures to a petition, and will pay a nominal sum for having 
it filed with the county clerk, is placed upon the list of 
candidates for his party. Upon a day set by law, election 
booths are opened and each voter may cast one ballot desig- 
nating the candidate of his choice for each office. Those 
receiving a larger vote than any other candidate of the 
same party for that office are declared the nominees, and as 
such are placed upon the official ballot at the next election. 

The weak point in the scheme is the necessity for legally Defect of 
determining who shall vote in connection with each party, 
or of leaving the parties to decide the question for them- 
selves under general restrictions. In addition, the diffi- 
culties encountered in using it for any large district have 
as yet prevented its trial except for small territories. Its 
advocates, however, assert that it has brought to the front 
a class of men who would have nothing to do with the old 
order of things, and that it has completely undermined the 
power of the self-seeking machine. 



History of Parties (§§ 532-540) 

a. Different accounts of the election of i860 are given in Schouler, 
United States, N , iJo\-if(i<^', McClure, Our Presidents, 154-182; Stan- 
wood, History of the Presidency, 279-297; Rhodes, United States, II, 
440-502. 

I. To what extent were the parties before i860 occupied with con- 
stitutional questions ? Is it true that the one in power was always 



direct nomi- 
nations. 



454 '^h^ American Federal State 

loose constructionist in practice ? "Why are constitutional issues less 
prominent to-day ? 

2. Explain as fully as possible the failure of the Federalists to re- 
gain control of the government. Compare the Whig party in compo- 
sition and principles with the Federalists. How do you account for 
the comparative equality of the two great parties since 1872 ? 

3. Trace the history of the Liberty and Free Soil parties to 1856. 
Were they both in favor of abolition of slavery ? To what degree did 
the Republican party represent their antislavery principles ? 

4. Make a study of the platforms of the Labor party for 1872 and 
of the People's party for 1892. What doctrines announced by the 
former are now accepted by our governments ? What were the most 
striking propositions of the latter ? 

5. Take some interesting campaign, as 1844, i860, 1876, 1884, or 
1896, and examine the proceedings of the nominating conventions, 
the character of the platforms, the conduct of the campaign, the de- 
cisive influences in the result, and the states or sections carried by the 
respective candidates. 

i. What is the greatest electoral majority obtained by any presiden- 
tial candidate since 1828? the greatest popular plurality (in propor- 
tion to the size of the whole vote) ? Give both electoral majorities 
and popular pluralities since 1888. (Johnston, American Politics, 
Appendix; and Political Almanacs.) 

ii. What is the present composition of the United States Senate 
and House ? Of your own state legislature ? What Congresses since 
the Civil War have been overwhelmingly Republican or Democratic ? 
How has your own state voted in recent elections ? Why does the 
state favor the party that it does ? Give the political faith of your 
representatives in all governments, from the highest to the lowest. 



Organizatdon and Work (§§ 541-549) 

1. Should a party be chiefly concerned with serving public opinion 
or leading and educating it ? Why is a complete and permanent 
organization so necessary to a party ? Are independent movements 
failures because they may be temporary ? 

2. Can a party do its work without a class of professional politi- 
cians ? Is there any good reason why the benefits of success should 
not go to the men who bear the brunt of the struggle ? What is the 
best method of obtaining both a powerful organization and the best 
candidates for office, i.e. of protecting both the public and the 
party ? 



The Political Party 455 

3. Would it not be better in the end for the people to have nomi- 
nations made directly by the machine than in conventions controlled 
by the machine ? Give your reasons in full. 

i. Give the names and, when possible, some account of the follow- 
ing for Republican and Democratic parties : chairman of the national 
committee; of the national executive committee; member from your 
state on the national committee; member from your county on state 
committee ; the chief party leaders, if any, in your county and city. 

ii. What conventions were held in the state and localities last year ? 
Ascertain the dates on which each was held and the approximate size 
of each. 

iii. What rule for party allegiance prevails in your own precinct ? 
Are the caucuses and primaries well attended ? 

Reform and Control (§§ 550-553) 

a. On reform of the primary, consult Field, D. D., in Forum, XIV 
(1892), 189 et seq. ; Pavey, F. D., in Forum, XXV (1898), 99-108; 
Easley, in Review of Reviews, XVI (1897), 322-324; and Hotchkiss, 
in Review of Reviews, XVII (1898), 583-589. 

1. Would the primaries be so important if we did not have reformed 
methods of voting and counting the votes ? Is there any possibility 
that a reform of the primary may necessitate a reform of what pre- 
cedes the primary ? Will a reformed primary make popular interest 
in party affairs more or less necessary if good results are to be obtained? 

2, Why is it more difficult to prescribe rules for party members than 
to determine who are voters ? Should a rule for membership in a party 
ever take into account a voter's position in local elections ? 



CHAPTER XXIV 

LEGAL AND CONSTITUTIONAL RIGHTS 
General References 

Bryce, American Commonwealth, 306-311. 

Burgess, Political Science and Comparative Constitutional Law, I,. 
184-252. Immunities against the central and state governments 
guaranteed by national Constitution. 

Cooley, Constitutional Limitations, chaps. IX-XIII. Immunities of 
citizens of the states. 

Cooley, Principles of Constitutional Law, 214-357. Rights enjoyed 
under the United States government especially. 

"Walker, American Law, Part VI. 

Parsons, Political, Personal, and Property Rights of Citizens of the 
United States. 

Dole, Talks on Law. A popular account, giving methods of protect- 
ing rights. 

State constitutions, bills of rights. 

Guarantees 554- The Bills of Rights in History and Law. — If there 
of liberty m jg Qjjg thing more than any other in which English-speak- 

the past and . 1 1 i 1 or 

the present, mg people have taken the greatest pride, it is the individual 
liberty which they have enjoyed under their various gov- 
ernments. There has always existed a hatred of arbitrary 
control more marked than among other races, although the 
development of real liberty did not reach a high plane till 
comparatively modern times. This dislike for undue gov- 
ernment restraint has nowhere and at no time been given 
freer expression than during the early part of the great 
revolution in the American colonies (chapter IV). The 
change from imperial to American rule could not remove 
from the minds of the people a dread of interference by 
the government; and hence led the organizers of the new 

456 



Legal and Constitutional Rights 457 

state constitutions to insert in those documents bills of 
rights reiterating the favorite political principles of the day 
and repeating some of the time-honored provisions of the 
Petition of Rights (1628) and the Bill of Rights (1691, 
§ 48). How greatly the people felt the need of constitu- 
tional restriction upon their representatives is seen in the 
pronounced opposition to the adoption of the present 
Constitution of the United States without a bill of rights 
(§ 120). These guarantees of liberty, instead of growing 
fewer, as we might imagine, have increased in number, in 
explicitness, and in value. Many of them are unneces- 
sary now as then, because public sentiment is a unit upon 
them, and public sentiment is, in many ways, a better safe- 
guard than a constitution; but it must be taken into con- 
sideration that when a court decides that a particular act 
violates an individual right, it can protect the right only 
because the act violates, at the same time, the law, statu- 
tory or constitutional, which guarantees that right. So pub- 
lic sentiment could not supplant the constitution as a 
protector of the individual; it can only supplement it. 

555. Classification of Civil Rights. — We may roughly Immunities 
classify civil rights according to the source of possible ^^amst 
restraint from which protection is afforded, as I, rights state govem- 
against the government or immunities from governmental ™^^ts. 
action; and II, rights against individuals. Under the 
first head we have (i) immunities against the national gov- 
ernment, all of which are contained in the United States 
Constitution or statutes; and (2) immunities against the 
state and local governments, which are guaranteed either 
by {a) the United States Constitution or {b) the constitu- 
tions of the states. Statutes may still further extend the 
field of this form of individual liberty; while the practical 
value of the constitutional provisions depend, to a large 
extent, upon the interpretation which the courts give them. 

The rights against individuals are, in fact, guarantees, Rights 
made by the constitutions or the governments, that certain ^Sf^'^^' '"°'" 
rights shall be respected by others. They are of two kinds : 



458 



The American Federal State 



Apply al- 
most exclu- 
sively to 
national 
government. 



Provisions 
applying to 
both central 
and state 
governments. 

Cooley, 
Const' I Law, 

294-301. 
last ed. 



(i) personal rights and (2) property rights; and the guar- 
antees made in state statutes are usually in the form either 
of methods of procedure or of penalties for personal injury 
(not considered in the light of a crime), and of payments 
for damages done. 

It will be impossible in a single chapter to treat more than the con- 
stitutional rights, with slight reference to those which are protected in 
criminal and in private law. 

556. General Rights in the United States Constitution. — 

As indicated in the last section, the provisions of the 
United States Constitution which guard individual rights 
afford protection either from the United States govern- 
ment, the state government, or both; but it must never be 
forgotten that they apply exclusively to the government of 
the nation unless otherwise stated. In other words, prac- 
tically the whole national "bill of rights " has nothing what- 
ever to do with the state governments, which, so far as the 
United States Constitution is concerned, may abridge lib- 
erty of the press, freedom of speech, or religious freedom, 
and deny right of trial by jury. Since the national gov- 
ernment is one of enumerated powers and, therefore, can 
do only that which has been granted to it; and since prac- 
tically the whole domain of private and criminal law belongs 
to the states, there was, and now is, much less need of pro- 
tecting the individual from the central government than 
from the state and local governments. But so far as the 
United States does deal with individuals, the need is far 
greater, because the national government is less easily 
subject to popular control. 

557. Immunities from all Government. — Certain per- 
sonal rights are protected by the national Constitution from 
both national and state governments. Neither Congress 
nor the legislatures are allowed to pass any ex post facto law, 
i.e. to make an act criminal which v/as not a criminal act 
at the time it was performed, or to increase the penalty for 
a crime committed before the law which made the penalty 



Legal and Constittitional Rights 459 

heavier had been passed. Neither government shall pass 
any bill of attainder, which deprives an individual of life 
and his relatives of property by act of a legislature. Neither 
has the right to establish slavery or any form of servitude 
" except as a punishment for crime whereof the party shall 
have been duly convicted." Nor can either government 
deny to anyone the privilege of the writ of habeas corpus, 
unless the denial is justified by public danger. To us these 
statements are platitudes, but they are all, especially the 
last, aimed to prevent the recurrence of abuses that darken 
the pages of English and, to some extent, American history. 

558. Freedom of Speech and Religion under United States Regulations 

Government. — The first amendment to the Constitution regarding 

, ,. , . religion, 

denies to Congress the right of either establishing any re- 
ligion or prohibiting the free exercise of a religion by any 
individual. This does not prevent Congress, however, from 
making illegal such practices as polygamy within the terri- 
tories, even when that is one of the fundamental doctrines 
of a religious sect. 

The same amendment prevents Congress from abridging Speech, the 
freedom of speech and of the press, or denying the right P''^^^- P^'*' 
to assemble and petition the government. All of these pro- assembling. 
visions are less important than they seem, because it is ^.^ j^ ^.,. . 
held that within the states Congress has no power whatever 278-281, 
to deal with these subjects; and some go so far as to assert 283-293. 
that when an official of the United States is defamed by a 
citizen of a state, he can have recourse only to the legal 
remedy of that state. For that reason the sedition law of 
1798 (§ 153), which in substance created a national libel 
law, has been thought by many to be unconstitutional. 

559. Personal Security under the United States Govern- Protection 
ment. — The abuse of the privilege claimed by the British ^'■°f soldiers 

^ ° .... and arbitrary 

government in colonial times to quarter its soldiers in pri- arrests, 
vate homes without pay, and to issue general warrants for cooiey, ibid., 
search of houses and arrest of persons, led to the adoption 217-222. 
of the third and fourth amendments. In time of peace no 
soldier of the United States shall be permitted to occupy a 



460 



The American Federal State 



Jury trials. 

Cooley, ibid., 

246-250, 

301-310. 



Amendment 
V. 



Regarding 

contract 

laws. 

Cooley, 
Const' I Law, 
311-327 



house if the owner is unwilling; and, during wars, he can 
do it only in accordance with regulations laid down by 
Congress for the whole country, though it must be admitted 
that an aggrieved person finds it difficult to obtain any 
redress under the latter conditions. Neither can a United 
States officer, by means of a general warrant, i.e. one which 
does not name the person accused or the goods to be seized, 
ransack the house of suspected persons till incriminating 
evidence is found, and, upon that evidence, arrest the 
person. 

560. Immunities against United States Government in 
Other Respects. — Although so few crimes come under the 
jurisdiction of United States courts, there are elaborate 
provisions in the fifth, sixth, and eighth amendments which 
guarantee right of trial by jury and other rights, which 
give the accused every possible advantage. As the state 
bills of rights are quite similar, and vastly more important 
because used so much more, these rights will be enumerated 
later. Right of trial by jury in suits at common law in- 
volving at least $20 is assured by the national Consti- 
tution, while the people are permitted to keep and bear 
arms at all times in order that a military despotism may not 
be possible. In the punishment of treason the government 
is restricted to the definition of that crime given in the 
Constitution; guilt must be proved by testimony of at least 
two witnesses to the same act or confession in open court, 
and no conviction shall affect any one but the guilty party. 

In the fifth amendment, security for persons and property 
is assured in the words, " Nor shall any person ... be 
deprived of life, liberty, and property without due process 
of law, nor shall private property be taken for public use 
without just compensation." 

561. Protection by the United States Constitution against 
the State Governments. — The rights of individuals against 
the state governments are protected by two very useful pro- 
visions of the United States Constitution. One of these is 
in the Constitution itself, the other in the fourteenth amend- 



Legal and Constitutional Rights 



461 



ment. The first says that no state shall pass any law im- 
pairing the obligation of contracts, and has been the source 
of almost unlimited dispute, due especially to the meaning 
of the word contract. It is now understood that any law 
which alters in any way a contract between private parties, 
or changes in an unreasonable way the means of enforcing 
it, comes under this prohibition upon the states. Likewise 
a contract, as e.g. a charter, made between the state and 
individuals or corporations, cannot be altered by the state 
government unless the state constitution expressly reserves 
to the legislature the privilege of changing it, or the con- 
tract itself provides for amendment or cancellation by the 
state. 

In the same section of the Constitution that contains the 
clause considered above, the states are denied the right to 
" make anything but gold and silver coin a tender in pay- 
ment of debt," thus protecting creditors on long time 
payments and all citizens in regular business. 

562. Protection by "Due Process of Law." — The first 
section of the fourteenth amendment asserts that no state 
shall " deprive any person of life, liberty, or property with- 
out due process of law, nor deny to any person within its 
jurisdiction the equal protection of the law." If a state 
shall attempt to do any of these things, the party aggrieved 
may obtain justice by taking his case before the United 
States courts. But, of course, no person is guaranteed that 
his state government will adopt those laws and that method 
of procedure that will give him the best opportunity to pre- 
serve his life and liberty and retain his property. In reality 
this is intended to serve only as a check upon arbitrary 
action by state governments. If the technical forms of law 
are observed, no person has any legal redress. 

563. The State Bills of Rights. — From a practical stand- 
point, the bills or declarations of rights in the state consti- 
tutions are much more valuable in maintaining individual 
liberty than similar articles in the Constitution of the 
nation. There is quite a difference between the older and 



Payment of 
debts in gold 
or silver. 



What it in- 
cludes. 

Cooley, ibid., 
230-235. 



The older 
and the 
newer bills of 
rights. 



462 The American Federal State 

the newer bills, the latter being far more definite; but, 
nevertheless, a general similarity prevails. With scarcely 
an exception, they open with a repetition of certain state- 
ments from the second paragraph of the Declaration of 
Independence, and many of them close with such a gen- 
erality as "a frequent recurrence to the fundamental princi- 
ples of civil government is absolutely necessary to preserve 
the blessings of liberty." Many include a few maxims or 
principles of government, but, on the whole, they are 
devoted to an enumeration of specific rights which the 
older ones say ought to be preserved and the newer ones 
declare shall be inviolate. Most of them repeat the pro- 
visions of the national Constitution which restrict the 
powers of the state, and some of them are little more than 
a copy of the national bill of rights. 

Michigan is the only one of the states that has no separate bill of 
rights. A good idea of the difference between the older and newer 
ones can be obtained by comparing that of New Hampshire or Ver- 
mont, or even of Massachusetts, with that of any state west of the 
Mississippi. The new constitution of New York gives an interesting 
summary of " rights." 

Full religious 5^4- Religious Liberty. — Nothing is given greater 
rights. prominence in the state bills of rights than the state- 

Cooley, ments referring to religious liberty. No state religion is 

Const' I Law, ^q i^g established anywhere, nor is any person to be com- 
pelled to pay for the support of a particular church, to be 
denied free expression of religious views, to be disquali- 
fied from holding office or exercising legal rights because 
of his opinions. But some add that practices under the 
cloak of religion that are detrimental to public morals shall 
be punished as crimes. 
The law of 565. Freedom of Speech and of the Press. — The states 
have adopted many of the rules and practices of the com- 
mon law — the original law of England — this having been 
the chief source of our rights and remedies; but some parts 
of this law have been modified in order to increase indi- 



libel. 



Legal and Constitutional Rights 463 

vidual liberty and gain the best results from government by 
the people. The common law did not give an individual 
the right to criticise candidates and officials as we do now, 
neither did it permit one person to say of another what we 
may legally do to-day. One of the maxims relating to the 
freedom of speech and of the press shows this; for as an 
eminent English chief justice, Mansfield, said, "The 
greater the truth, the greater the libel." Our own custom 
is exactly the reverse, for over half of our constitutions 
expressly state that in a suit for libel the truth may be given 
as evidence, and all provide for freedom of speech and the 
press, asserting, however, that all persons shall be liable for 
abuse of the liberty. 

566. Protection of Property from the Government. — Through just 
There are two ways besides robbery in which government *^''^*^°"- 
may take the property of its citizens and subjects without 
their consent. One through taxation, the other by exercis- 
ing the right of eminent domain. The state constitutions 
almost invariably go farther than that of the United States 
in protecting individuals from arbitrary action; e.g. when 
a constitution says that all taxation shall be just and uni- 
form, and that the general property tax shall be levied in 
proportion to value, while double taxation is forbidden, 
property owners who believe themselves unfairly treated 
can have recourse to the courts with every probability of 
receiving justice. 

The right of eminent domain may be exercised by the Eminent 
state either for itself, for one of its public corporations, or °°'"^'"' 
for private corporations, or private parties. The constitu- Cooley, ibid., 
tions usually provide that the property shall be taken only 344-357- 
for a public use, and arrange that in case of disagreement 
between the property owner and those needing the property 
the courts shall leave the amount of compensation to a jury 
or other tribunal, whose decision is final. Individuals 
are therefore fully protected, though their claim to a par- 
ticular piece of property is subordinate to that of the 
public. 



464 



The American Federal State 



Holding 
persons for 
trial. 



Trial of 
accused. 

Cf. Cooley, 
id«rf., 301-310. 



Two forms 
of codes. 



567. Rights of a Person accused of Crime. — Both the 
United States and the state constitutions are very careful 
in guarding the rights of any one held for trial. Persons 
suspected of murder can be tried only upon a presentment 
or indictment of a grand jury, i.e. only after an examination 
before impartial fellow-citizens followed by a written state- 
ment that the evidence justifies their being held. In most 
of the states, persons may be tried for lesser crimes upon 
a charge called information, made by the public prose- 
cutor; but even then they may have the benefit of a pre- 
liminary examination before a grand jury or a justice of a 
minor court. 

The accused is everywhere guaranteed a speedy trial, 
and, except for crimes punishable by death, has the oppor- 
tunity of offering bail, which is forfeited if he fails to 
appear on the day appointed. When the trial begins, he 
has counsel furnished by the court if unable to pay for an 
attorney himself. Whatever witnesses he or his lawyer 
desire shall be called, and no witness can testify against 
him except in open court in his presence, an exception 
being made when death-bed testimony is introduced. A 
jury is always used to decide whether the facts show that 
the person is guilty, a unanimous verdict being necessary 
to convict. The defendant cannot be compelled to testify 
against himself, and if acquitted cannot be retried under 
ordinary circumstances. If the jury is divided in its 
opinion, however, there has legally been no trial whatever. 
The whole system presupposes a person innocent till proved 
otherwise, while everything about it favors the accused. 

568. Protection of Rights under Penal Codes. — The 
criminal laws made by the state legislatures serve at the 
same time to protect the general public and any individual 
who is injured, and yet render justice to those tried for 
crime. We may separate the laws into two parts, — the penal 
code proper and the code of criminal procedure. The 
former deals with the definition of crimes, the latter with 
the methods used by the criminal courts. 



Legal and Constitutional Rights 



465 



Most of the crimes are either against property or against Definition 



the person, but the interest of the community at large 
to prevent the spread of crime is treated as more im- 
portant than that of the injured party. As no one can 
be punished for crimes not on the statute books, every 
effort is made to fully cover the multitude of offences 
which may be committed, and provide suitable penalties 
for each. 

569. Protection of Rights by Suits at Law and in Equity. 
— Individual rights are, however, protected more by the 
"civil " than by the criminal laws. When a personal griev- 
ance against some one else amounts to a crime, the state 
takes charge of the prosecution, the complaining party being 
merely a witness, who obtains no pecuniary satisfaction if 
the defendant is found guilty; but in civil suits, the person 
aggrieved brings suit directly against the one who has 
injured his person or his property, and, in case his con- 
tention is sustained by the court, he obtains judgment for 
such an amount as the court deems reasonable. 



and nature of 
crime. 



Distinction 
between 
civil suit and 
criminal 
case. 



at law and 
suits in 
equity. 



Of " civil " suits there are two distinct kinds, commonly known as Distinction 
suits at law and suits in equity. They not only relate to different sub- between suits 
jects, but employ entirely different methods. In general, the lawsuits 
deal with the ordinary affairs of life, including land titles, contract 
rights, debt obligations, and many others. The methods of procedure 
are rather complicated, and, while the number of rights recognized and 
guaranteed by this branch of the law are numerous, it would often be 
impossible to obtain justice through it alone, because it is too rigid 
and technical. These defects "equity" is intended to remedy. The 
procedure in equity cases is comparatively simple, and the methods of 
equity courts enable them to afford deeper, quicker, and more sub- 
stantial relief than would be possible under the processes of the "law" 
courts. Equity, however, covers relatively few cases, and those are 
generally of a complex nature, such as questions of trust, liens, frauds, 
etc. The chief advantage of equity from the standpoint of rights is 
that, as Dole says, " equity administers the ounce of prevention ; law, 
the pound of cure," e.g. by means of injunction an equity court will 
prevent your neighbor from erecting a nuisance at your dooryard or 
building a railroad across your lot, whereas a court of law can only 
give you satisfaction afterward for injury done. 

2H 



466 



The American Federal State 



Protection of 
weaker 
classes by 
law. 



Homestead 

exemption 

laws. 

Spofiford, in 
Lalor, II, 
462-465. 

Cleveland, 
Democracy , 
380-385. 



Historical 
importance 
of jury 
system. 



Right of trial 
to-day in 
criminal 
cases ; 



in lawsuits. 



570. Homestead Exemption Laws. — Many rights are now 
recognized by the constitutions and the statutes which for- 
merly had no existence. For example, married women, 
who in times past had no separate property rights, are now 
almost everywhere permitted to own and manage separate 
property, and have claims upon that of their husbands; 
laborers are given preference over other creditors of their 
employers; and debtors are permitted to retain their 
homesteads in case of insolvency. 

At the present writing, homestead exemption laws are 
to be found in all but four states, all of which belong to 
the original thirteen. Of the others, the majority place the 
maximum value of property exempted at ;^iooo or j^zooo, 
though several go as high as $5000. Many of these also 
allow debtors to keep personal property, either in addition 
to the homestead or without the latter. Both the letter and 
the spirit of the law of to-day favor the rights of those who 
would naturally be least able to protect themselves. 

571 . Extent to which the Jury System is used. — The 
credit for maintaining so satisfactorily the rights of indi- 
viduals before the law in England and America belongs, 
to a very great extent, to the jury system. When popular 
participation in the work of government was much less 
common than at present, when judges could not possibly 
be influenced directly by the wishes of the people, and 
when the principal characteristic of the criminal laws was 
their harshness, the right of trial by jury was almost the sole 
source of justice for the common people. With the changed 
conditions of the present, it is no longer the one thing 
indispensable to the oppressed, but its extensive use bears 
witness that its value is not purely historic. 

In criminal cases where the crime amounts to a felony, 
the guilt of the accused is always determined by jury; but 
for many kinds of misdemeanors the police justice renders 
the decision, unless the defendant demands a jury trial. 

In lawsuits there is scarcely a state that does not permit 
the jury trial to be waived with the consent of both parties; 



men and the 
accused. 



Legal and Constitutional Rights 467 

but some of the newer ones have gone farther and do not 
require a unanimous decision. 

Nevada provided in her constitution (1864) that in civil suits three- States that 

fourths of the jury should be sufficient to decide. California, Wash- have abol- 

ington, Idaho, and Utah have followed her example: Minnesota has ished unani- 

mous ver- 
given her legislature the right to pass a law that six of the jury are ^j^^^g 

enough; while Montana is the most lenient of all, and allows two- 
thirds of the jury to decide civil suits. So far Idaho is the only state 
that has broken away from the unanimous vote in criminal cases by 
giving five-sixths of the jury the right to render a decision in mis- 
demeanors. 

572. Advantages of Jury Trial. — Juries are an advantage To the jury- 
both to the accused and the jurymen. To the former, 
because the facts connected with his guilt or innocence are 
viewed from the standpoint of common sense rather than ^^ £^^ g. 
of law. The jury disregards technicalities, but places the 83. 
emphasis upon the right or wrong involved. It takes into 
account the circumstances, the motive, and the conse- 
quences, so that if it errs at all, it errs on the side of 
leniency. If the bench, and not the jury, were to decide 

the facts as well as the law, the letter of the law would be 
less violated with impunity; but its spirit would grow frail 
through disuse : the law would lose in force what it gained 
in definiteness. As a legal system it would be more per- 
fect, but as a medium of justice it would be a failure, 
becoming more and more undemocratic. 

To the citizen the jury gives opportunity for civic edu- 
cation. It brings him into touch with the work of adminis- 
tering the law and makes him part of it, and in so doing 
gives him clearer conceptions of legal rights and methods, 
and fits him to exercise his duties as a citizen with greater 
knowledge and to better purpose. 

573. Disadvantages of Jury Trial. — The main question is Abuses and 
whether these advantages are worth what they cost, whether defects. 
they apply to all forms of jury trial, and whether they 0016,73-77. 
are not, after all, but partially secured on account of the 
numerous exemptions from jury duty. Civilization to-day 



468 The American Federal State 

is complex, and on every hand demands division of labor 
and concentration of effort. Formerly men had many lines 
of work, and one additional did not matter; but now to 
break in upon a prescribed routine entails serious loss not 
only at the time, but in all subsequent efforts. It has 
therefore been considered necessary to exempt from jury 
service all who are in the professions or upon whom respon- 
sibility is centred. This removes at once the ablest classes 
from the jury lists, and has given some ground for the 
charge that only the ignorant and thoughtfree are wanted. 
The jury, consequently, does not represent the community, 
and the civic education is as often as not wasted. More- 
over, the juries are less fitted to understand and judge ques- 
tions involving knotty problems of law, and, on the whole, 
do not give satisfaction in civil suits. They are especially 
desired by the lawyer who has a weak case, for he can easily 
deceive them; and, as they cannot take notes, an eloquent 
appeal at the last blinds them to all previous evidence. In 
criminal cases a jury drawn from the lower half of society 
often fails to protect that society out of sympathy for the 
accused. Summing up we may say: the jury is expensive, 
under present conditions it is necessarily unrepresentative; 
in civil suits, through its ignorance, and in criminal cases, 
through its prejudice, it often defeats the ends of justice. 



QUESTIONS AND REFERENCES 

Rights guaranteed by the United States Constitution 

(§§ 554-562) 

1. Trace the history of the writ of habeas corpus (cf. Medley, Eng- 
lish Constitutional History). Has the denial of the privileges of the 
writ in this country ever worked hardships ? 

2. Ought all civil rights to be national instead of part national and 
part state ? Give arguments for and against the nationalization of 
civil rights (cf. § 249). 

3. Is there any connection whatever between personal liberty and 
guarantees of rights by the states, i.e. would personal liberty be endan- 



Legal and Constitutional Rights 469 

gered by nationalization of civil rights ? Why have most of the people 
of the United States in the past held that it would ? 

i. What provisions of the national bill of rights are of especial 
value ? What ones belong almost solely to history ? Are any a dis- 
advantage at present ? If so, vs'hich ? 



Rights under the State Constitutions and Laws 

(§§ 563-570) 

a. Look up the method of procedure in criminal cases, in suits at 
law, and in equity ; consult Willoughby, American Citizenship, 94- 
109; Dole's Talks on Law, chaps. IV- VIII, XII; Andrews, Ameri- 
can Law, Parts III, IV. 

1 . Make a comparison of an eighteenth-century bill of rights with 
a recent one ; of your first one with the one of to-day. 

2. Is there too much license in speech and writing ? What should 
be the proper limit between proper freedom and too little restraint ? 
Under what circumstances, if any, ought the truth to be considered 
libellous ? 

3. How can private parties take property for a public use ? What 
constitutes a public use ? Should the courts or the legislature deter- 
mine what is, and why ? 

i. Is your bill of rights long or short, general or specific ? What 
provisions of the United States Constitution are copied ? Are all of 
the national prohibitions upon the state repeated ? 

ii. Give the provisions regarding religious freedom, freedom of speech, 
right in trials, property rights, knd any others of importance. 

iii. If possible, visit a courtroom and witness a trial. Learn the steps 
necessary to begin a civil suit. Notice the difference in procedure in 
criminal cases, in suits at law, and in suits in equity. 



The Jury System (§§ 571-573) 

a. Notice the advantages of the jury system as given by Lieber, 
Civil Liberty and Self-government, 234-237; H. H. Wilson, in Popular 
Science Monthly, XXIV (1883), 676-686; and Townsend, in Forum, 
XXII (1896), 107-116. 

b. Compare the above with the accounts of E. A. Thomas, in Forum, 
III (1887), 102-I10; C. H. Stephens, in Popular Science Monthly, 
XXVI (1884), 389-298. 



4/0 The American Federal State 

1. What reforms in the present jury system seem to be demanded ? 
Can you suggest a suitable substitute for the jury ? 

2. Look up the origin of jury trial. When did it originate ? Where ? 
What changes has it undergone ? 

i. What is a grand jury ? Is more than one held in your county 
each year ? If not, what does it do ? If so, what are the tasks of 
each ? 

ii. How are jurors selected for a term of a court ? How for a par- 
ticular jury ? Are they paid ? If so, how much ? Who are exempted 
in your locality ? 



CHAPTER XXV 

TAXATION 
General References 

Hinsdale, American Government, 194-198. On national taxes. 

Bryce, American Commonwealth, 356-365. On state finance. 

Shearman, Natural Taxation. Defects of present system, and new 
one proposed. 

Roberts, Government Revenue. 

Wells, Theory and Practice of Taxation. 

Ely, Taxation in American States and Cities. Interesting facts, fig- 
ures, and suggestions. 

Plehn, Public Finance, Part II, chaps. IV-IX. The most satisfactory 
brief account of American taxes. 

Daniels, Public Finance. 

Bastable, Public Finance, Books III and IV. The principles of taxa- 
tion and different kinds of taxes, especially European. 

Seligman, Essays in Taxation. Brief treatment of the general prop- 
erty and inheritance taxes, with full discussion of corporation 
taxes by a very high authority. 

Adams, Science of Finance, especially 286-516. Theoretical and prac- 
tical consideration of taxes, particularly American. 

Cooley, Taxation. The law of the subject. 

Howe, Internal Revenue System in the United States. 

West, The Inheritance Tax. 

Jones, Federal Taxes and State Expenses. 

574. The Question of Taxation. — We may not fully agree importance 
with those writers who hold unjust and arbitrary taxation ° ^^^ '°"' 
responsible for the great revolutions of history, with their 
resulting contributions to the progress of mankind; but the 
present interest of a subject so closely connected with the 
pocket-book of practically every citizen, and its future 
importance as a possible means of solving some of the 
problems of society, cannot well be questioned. 

471 



472 



The American Federal State 



It should be 
according to 
ability to pay. 

Adams, 
Science of 
Finance, 
328-332. 



Other charac- 
teristics. 

Bastable, 
Public 
Finance, 
382-391. 



575. Characteristics of a Good Tax. — There are certain 
characteristics that every tax should possess. Among these 
five are especially important, (i) It should be according 
to the citizen's ability to pay. It is now generally felt 
that ability should be the test of the amount paid in 
taxes, because it is a social duty for the individual to con- 
tribute to the support of the government in proportion to 
his means. But there is still a great deal of disagreement 
over the best way to determine ability, some favoring the 
net income, others the gross income, and a third set the 
value of the property a man owns. (2) The times and 
methods of assessment and collection should not be arbi- 
trary, but fixed and known to all. (3) The tax should be 
as little felt as possible. All of the burden should not be 
placed upon a single class, as in many of the French taxes 
just before the great Revolution. An old but defective tax 
is often less felt than a new, though much better tax. 
Changes should, in consequence, take place only when the 
good to be derived clearly overbalances the difficulty the 
people encounter in adjusting themselves to the change. 
(4) It should be easily administered. It should not be so 
hard to assess the tax that a premium is placed on dishon- 
esty. No tax can be easily administered that does not meet 
with the support of the people, or of which the cost of col- 
lection is great. (5) It should be suited to the district for 
which it is assessed. The absurdity of allowing cities or 
even states (commonwealths) to levy customs duties or 
internal revenue is clearly apparent, while a general land 
tax would be about as little suited to the purpose of the 
central government. 



Tax systems. 

Bastable, 
356-258. 



576. Tax Terms. — By a system of taxes we mean the sum total 
of all of the taxes levied by any one government. In most countries 
there are two tax systems: the national and the local; in this country 
we have three : the national, the state, and the local. Now, as a matter 
of fact, no one tax is likely to possess all of the characteristics we have 
just enumerated. But if no tax is seriously defective, and if the system 
as a whole conforms to these characteristics, the tax system might be 



Taxation 473 

said to be good. But in order to be satisfactory, a tax system must do 
more than that. The systems of the nation, the state, and the locali- 
ties must not conflict or greatly overlap, while each system must be 
adapted to the peculiar needs of its government, as shown in the 
expenditures of that government. 

Taxes are either direct or indirect, but a great deal of confusion has Direct and 
been occasioned by the use of these words in different senses. The one indirect 
most common speaks uf direct taxes as those which are actually paid ^^^^'^' 
by the person upon whom they are assessed, as ordinary land, house, 
and " personal " taxes. Indirect taxes are those levied upon imported 
goods, and most forms of internal revenue where the person paying 
the tax adds the amount of it to the price of the goods, and the tax is 
really paid by the purchaser. Most authorities agree that the expres- 
sion " direct taxes " in the Constitution does not include all of the 
direct taxes just mentioned. 

When the total amount to be raised by a specific tax is ascertained Apportioned 
beforehand, and the amounts for different localities are accurately stated, and percent- 
the tax is said to be apportioned ; but if the tax rate, and not the ^^^ taxes, 
amount, is given, so that the total revenue depends upon the value of 
what is assessed, we have ^percentage or rated tax; e.g. the tax upon 
customs duties falls in the second class because the rate is specified, 
and the amount depends upon how much is imported. 

Finally, taxes may be proportional or progressive. If the rate is Proportional 
the same for the person who pays a small tax as it is for the one whose and progres- 
assessment is large, the tax \% proportional ; but when the rate increases ^'^^ taxes, 
with the assessment, progressive taxation results. E.g., an income tax Bastable, 
that exempts all persons with incomes of less than $1000 a year, 289-306. 
charges two per cent on incomes between ^looo and ^5000, three ^jj^ms 
per cent on those between ^5000 and $10,000, and so on to ten per 352. 
cent on all annual incomes of over $1,000,000 is progressive. So 
also an inheritance tax, where the rate varies both with the amount 
of any single bequest and the relationship of the legatee, is pro- 
gressive. 

577. The Cost of Government. — Before taking up the Expendi- 
different tax systems of our country, let us consider for a ^"''^5 of 
moment the cost of all our governments to the people, in s.^te, and 
order to get a better idea of the amount of money re- local govem- 
quired. For the fiscal year 1900 the national government 
spent $487,713,791.71 in addition to the receipts of the 
post-ofifice. In 1895 the state governments expended 
$129,129,225, and the amount in 1900 probably exceeded 



ments. 



474 



The American Federal State 



Peace and 
war taxes of 
United States 
government. 



Three 
periods of 
national 
taxation. 

Howe, 
Internal 
Revenue, l-8. 



;^ I SO, 000,000. The census of 1890 shows that the expendi- 
tures of local and municipal governments for all purposes ag- 
gregated over ^460,000^000. In 1900 the total, including 
municipal investments, must have reached 1^650,000,000. 
This would make the entire expenditures of all governments 
for that one year nearly $1,300,000,000, almost all of 
which was raised by taxation. 

578. The National Tax System. — A casual examination 
of national expenditure would show us that in times of 
peace more than one-half the money paid out by the national 
government is for the army and navy, for pensions and 
interest on the war debt. This proportion is of course 
vastly increased in time of war, so that the ability to meet 
this increase, wholly or in part, is one of the greatest needs 
of the national system. This need is largely met by the 
extensibility of internal revenue and other taxes. In time 
of peace the principal taxes that are used are customs duties 
and internal revenue, while taxes added during periods of 
danger include income and inheritance taxes. 

In 1900 receipts from customs was ;^233,i64,87l.l6, from internal 
revenue, ;?295,327,926.76, postal service, ;?io2,354,579.29, and the 
total reached ^669,595,431.18, leaving a surplus for that year of 
#79.527.060.18. 

579. History of National Taxes. — Roughly speaking, 
national taxation has passed through three periods. The 
first of these was brief, from 1789 to 1802, during which 
various forms of customs duties and internal revenue were 
used, and experiments were made with direct taxes on lands, 
houses, or slaves; besides taxes on auctions and carriages. 
The second, from 1802 to 1861, was marked by an almost 
exclusive dependence upon duties, except for brief periods 
when heavy expenses rendered more revenue imperative. 
The third dates from the beginning of the War of Secession, 
at which time internal revenue was reincorporated into our 
national system and various war taxes were introduced, 
notably that on incomes. 



Taxation 475 

580. Operation of Customs Duties. — Taxes upon imports Merits and 
have been the chief reliance of the national government, dei^^^ts of 
They have been used from the start for the double purpose ports. 

of raising revenue and affording protection to industry, p, . p ,,. 
Because of this double purpose the tax, as a tax, has often Finance, Part 
increased the difficulties that customs duties always cause: ii.chap.vii. 
that of making the poor pay much more than their share Bastabie, 
of the tax. As the greater part of the duty is paid upon S^*-S32- 
goods bought by all classes, the man with an income of 
;^ 1 0,000 probably does not pay more than three times as 
much as the man with an income of $500 a year. This is 
certainly unfortunate, especially if the duties are heavy, for 
the poor man ought to be exempt as far as possible from 
all taxation. To counterbalarce these disadvantages there 
are certain nominal gains derived from this, as from all 
indirect taxes. As the duty is paid by the importer, the 
purchaser does not realize when the tax is a part of the 
price he has to pay, or what part of the price is a tax. 
The burden of the tax is therefore little felt. 

In connection with this paragraph the discussion of the other sides 
of the tariff (§§ 606-610) should be considered. 

581. Internal Revenue. — At present internal revenue is Bases and 
quite as valuable as the duties, while it is likely to be even advantages 

^ ' •' of our excise 

more used in the future. The three chief sources of inter- taxes. 
nal revenue proper have been distilled spirits, fermented pjgijj, p^rt. 
liquors, and tobacco, the custom being to increase the rate li, chap. VI. 
upon these three and add new schedules covering various 
business transactions whenever the need arises. All of the 
advantages of indirect taxes are claimed for them, besides 
the merit of restricting the sale of articles on the whole 
injurious to the community. In case of war they are 
especially valuable, for foreign commerce is likely to be 
reduced in amount, while the tax rate on domestic indus- 
try can be greatly increased without seriously crippling 
business. Everything considered, they are the most satis- 
factory national taxes we have tried. 



4/6 



The American Federal State 



Other internal taxes considered later deal with incomes 
and inheritances. 



Excise taxes 
in United 
States since 
1791. 

Howe, 
Internal 

Revenue, 
9-38. 

The War of 
1812. 

Howe, 39-49. 



The Civil 
War, 

Howe, 50-81. 



Recent 
internal 
taxes. 

Howe, 214- 
233. 



582. History of Internal Revenue Taxation.— The first 

internal revenue taxes were levied upon distilled spirits in 1 791 at the 
instigation of Hamilton. The law was modified the next year, but its 
attempted enforcement led in Pennsylvania to what is known as the 
whiskey rebellion (1794). The same year as this revolt, separate in- 
ternal taxes upon carriages and auctions were created, and later 
(1797) stamp taxes were first used. All of these, as well as the direct 
taxes adopted during the same period, were repealed in 1802. 

It was not until 181 3 that the inadequacy of the revenue forced 
Congress to return to some form of internal taxation. The new sched- 
ules included liquor taxes and licenses, stamp duties on legal instru- 
ments, carriage and auction taxes: in short, the whole scheme was 
copied from the Federalists. These taxes lasted four years. 

During the War of Secession no tax that we should call internal was 
assessed until 1862. On July i of that year an omnibus bill, fore- 
shadowing the system which was to include everything and everybody, 
was adopted by Congress, but the rates were much lower than those 
accepted later. Among other provisions were those for the taxation 
of all kinds of liquors, corporations, inheritances, incomes, stamp 
taxes on business papers, and taxes on business in general and every 
operation in the process of manufacturing. Subsequent laws increased 
the rates and added new sources of revenue, especially that of June 
30, 1864, and no reduction was attempted till 1866, though by 1869 
the amount of revenue from this source was but one-third what it was 
in 1866. However, the difficulties encountered because there had 
been no taxes of this kind before 1861 are apparent when we notice 
that in 1864 the total from internal revenue and income taxes was but 
;^ 1 10,000,000, while in 1866 it had risen to $311,000,000. 

From 1868 to 1898 the only important internal revenue taxes were 
upon distilled or fermented liquors and tobacco. With the outbreak 
of the Spanish- American War in 1898 the rates on these articles were 
greatly increased and new schedules added, those creating stamp taxes 
on certain kinds of manufactured articles and upon business papers 
being the most profitable. Most of these new sources of revenue have 
been dropped (1901). 



Taxation of 
incomes in 
other coun- 
tries. 



583. Income Taxes. — Although we have no income tax 
at the present time, the recent efforts made to levy one 
(1894), the fact that we had such a tax for ten years, and 



Taxation 



A77 



that some form of this tax is levied in the most advanced 
countries of Europe make it worth while to consider it for 
a moment. 

The income taxes of 1861-1872 grew out of the pressing 
need for revenue, and did not greatly consider whether the 
tax itself was good or not. At no time were incomes under 
^600 included, and the progressive principle was recog- 
nized most of the time; so that in the heaviest tax levied, 
incomes between ^600 and ^5000 paid five per cent, those 
over $5000 ten per cent. In spite of the popular feeling 
that such a tax is an invasion of rights, and impossible of 
administration because it places such a premium on dis- 
honest statement, there is evidence that it was more suc- 
cessful than the general property tax then and now in such 
general use among the states. 

The income tax of 1894 grew out of need for revenue, 
but many considered it purely a class tax, to make the 
wealthier members of society pay more than their share. 
No incomes below ^4000 were assessed, but two per cent 
was levied upon all excess over ^4000. The tax was de- 
clared unconstitutional by the Supreme Court, because they 
believed it a direct tax, which was not levied upon the states 
in proportion to population as directed by the Constitution. 

584. Other National Taxes. — Direct taxes have been 
little used since the Constitution was adopted, having been 
voted only five times by Congress. The whole amount to 
be raised is specified, and the sums which each state shall 
contribute is determined by its population. Congress, 
however, has named the bases upon which the tax is to be 
assessed, usually lands only, but at times real estate, houses, 
and slaves. 

Inheritance taxes have been tried twice, in connection 
with the War of Secession and that with Spain. The 
earlier one introduced the progressive principle only for 
relationships, the later one increases the rate both accord- 
ing to the amount of the bequest and the lack of blood 
relation. 



Income taxes 
of the Civil 
War. 

Howe, 90- 
102. 



Proposed tax 
of 1894. 

Seligman, E. 
R. A. in P. S. 
Q.,IK 
(1894), 610- 



Direct taxes. 
Howe, 82-90. 



Inheritance 
taxes, 

Howe, 114- 
120. 



4^8 The American Federal State 

Direct taxes were voted in 1798, 181 3, 18 14, 181 5, and 1861. The 
last was never fully paid, and the sums collected were returned to the 
respective states in 1891. The law of 1864 made the rate for the 
inheritance tax from one to six per cent; that of 1898 provides for a 
minimum of three-fourths per cent and a maximum of fifteen per cent. 
Many states also have taxes upon inheritances. 

Percentage S^S- Administration of National Taxes. — The methods 
taxes. employed in the administration of these taxes are more or 

Adams, 430- Icss alilce. The government knows about how much money 
434. 467-476. jt needs, but it cannot leVy the taxes by fixing the amount 
to be derived and then arranging the rate to correspond. The 
Ways and Means Committee of Congress, as we have seen 
(§§ 292-294), decide what the tax rate shall be on all articles 
imported or produced, so that the revenue of the govern- 
ment depends on the amount of dutiable goods imported or 
the quantity of liquor and tobacco manufactured. Duties 
are collected at the port where the goods enter the country, 
the goods being apprized and the tax collected by officials 
appointed by the government. For the administration of 
the internal revenue tax, the country is divided into internal 
revenue districts for each of which collectors are appointed. 
General uni- 586. State and Local Taxes. — There is of course a cer- 
formity tj^j^ lack of Uniformity in the state and local taxes used in 

throughout ,.„ . , , . .... 

United different parts of our country, but because of many similan- 

states. ties and because the taxing power exercised by the cities 

and counties is really a grant of the state to those local 
divisions, we shall consider them together. 
What it in- 587. The General Property Tax. — The most common tax 
eludes. Ijj ^j^g United States is what is called the general property 

Seiigman, tax. It is used by practically every state and by every sub- 
Taxatim division of the states. It covers almost everything that 
54-59. makes up a man's wealth. It includes all real estate (land 

Piehn, Ft. II, ^•nd houses), and usually all personal property such as house- 
ciiap. IX. hold furniture, business stock, jewelry, money, bonds (ex- 
cept those exempt by law), credits, etc. Such a tax is well 
suited to a community where agriculture is almost the only 
occupation, and where in consequence cities and business 



Taxation 479 

interests are few. There it is possible for the assessors to 
learn with some degree of accuracy what property a man 
owns, and little of his personal property will escape taxation. 
The fact that this tax was so well adapted to conditions one 
hundred years ago does not, however, prove that it is suitable 
for present needs. 

588. Difficulties in assessing the General Property Evasion of 
Tax. — The most serious difficulty is encountered when the Payment on 
assessors try to determine what each man's assessment shall property. 
be. The houses and lands cannot run away, and the estimate . , 

of their value over a small area, such as a county, is compara- Finance, /^■3,(t- 
tively simple. But it is something quite different to ascer- 445- 
tain the true valuation of personal property. Citizens can Seiigman, 
easily misrepresent the value of many articles, while others, ^7-37- 
like bonds, may be entirely concealed. The law tries to pre- 
vent such an evasion by compelling every property owner 
to make out a sworn statement or tax list stating just what 
he possesses, and often stating what it is worth. ^ Although 
heavy penalties are prescribed for those who return a false 
statement, it is the custom everywhere to leave out those 
items whose omission would not be especially observable. 
As these statements are made the basis of the assessors* esti- 
mate, the assessment lists usually show the same omissions 
as the statements, though the assessor is not bound to follow 
them. 

589. Defects of General Property Tax. — Since the general The poor 

property tax can be so imperfectly assessed over even a i"^" P^y^ 

\ much more 

small area, it leads to gross inequalities in the burden it than his 

places upon different persons. Those who have a great deal share. 

of land, with very little other wealth, have their property Adams and 

assessed at perhaps seventy per cent of its market value, Sehgman, as 

while the capitalist who has put his money into railway stock 

may pay taxes on less than twenty-five per cent of his 

wealth. This inequality is the more glaring because it 

weighs heaviest on the class least able to bear it — on those 

engaged in agriculture. It makes the poor man in the city 

pay more than his share in taxes on his little home or 



48o 



The American Federal State 



Inequalities 
of the general 
property tax 
over large 
areas. 

Seligman, 
24-26. 

Adams, 
44S-449- 



Problems in 
the taxation 
of corpora- 
tions. 

Adams, 
449-466. 



indirectly through rent, while his richer neighbor contributes 
much less in proportion to his means, although he is abun- 
dantly able to give a much larger part of his income. 

590. Equalization. — These difficulties and inequalities 
apply to both large and small areas. Another problem con- 
fronts us when the area is of any considerable size. After 
the town assessors have completed their w^ork, it is necessary 
for some body of men in the county to take the assessments 
from the different towns and make sure that the assessment 
in town A and in town B is made at practically the same 
per cent of the actual value. This body is called the Board 
of Equalization. If it happens that the assessment in town 
A seems to be at fifty per cent and that of town B at eighty 
per cent, while the average for the county is seventy per 
cent, they will necessarily raise the assessment in town A and 
lower that in B before the county tax is levied.^ But it is 
almost impossible to learn with any exactness such differ- 
ences ; and when it can be done, the attempt to equalize 
the discrepancy is more often than not only partially success- 
ful. The same difficulties much increased are encountered 
by the state board that attempts to equalize the assessments 
from the different counties. Thus it often happens that a 
county in one part of the state pays state taxes on an assess- 
ment from twenty-five to sixty per cent higher than the aver- 
age of the state for the same kinds of property, and it may 
be that the evasion of the personal property tax by others 
will make this one county pay more than twice as much in 
proportion to its wealth as the average of the state. 

591. Corporation Taxes. — Many states are now making 
an effort to pay their expenses without using the general 
property tax, leaving that entirely to the localities. These 
have recourse especially to corporation taxes, levied upon 
certain classes of private corporations, such as banks, rail- 
ways, insurance, telephone, and manufacturing companies. 
The tax has not been used long enough to make the methods 
of assessment at all uniform. In some cases it is assessed 
upon the capital stock or upon the supposed value of the 



Taxation 48 1 

franchise, in others upon the gross or net earnings, or upon 
the dividends declared. The tax is certain to fill an impor- 
tant place in the state systems of the future, as it does in the 
systems of the most progressive countries of Europe. The 
growth of industrial as distinguished from agricultural com- 
munities means that the general property tax must be dis- 
carded ; and that separate taxes, like the corporation, real 
estate, and business taxes, will probably take its place. The 
things most necessary in making such a change are to see 
that each person shall be asked to pay, just as far as possi- 
ble, in proportion to his ability, that changes shall be suited 
to the conditions, and that the burden placed upon industry 
shall not be so heavy as to interfere with the general pros- 
perity of the community. 

592 . Special Assessments. — Our cities make very frequent Local assess- 
use of what might be termed a form of tax, usually called a '"^"*^' 
special assessment. When a street is to be opened or im- Seligman, 
proved, when a sewer is to be put in, or a sidewalk laid, 
instead of paying for all of the expense out of the city funds, 
a special assessment is made upon the property that will 
derive the greatest benefit from the improvement. In most 
cases this is the property immediately adjacent, but may be 
understood to mean a larger district in which the rate of 
assessment varies with the distance from the improvement. 

QUESTIONS AND REFERENCES 

National Taxes (§§ 574-585) 

a. On the income tax of Great Britain, see Bastable, Public Finance, 
447-450, and Cohn, Science of Finance, 488-494. On those of the 
states, Seligman, "Colonial and State Income Taxes," in P.S. Q., X 
(1895), 221-247. 

I. Should taxes be levied according to a person's ability to pay, or 
according to the benefit he derives from the expenditures of the gov- 
ernment ? Should they be progressive or proportional ? What is 
the best test of ability, and why ? 
2 I 



4^2 The American Federal State 

2. Apply the test of a good tax (§ 575) to the different national and 
state taxes, and notice what characteristics each has or lacks. 

3. Should we have a national income tax like that of Great Britain ? 
like that of Germany ? Are the chief objections to an income tax con- 
stitutional, theoretical, or practical ? 

i. What articles imported are taxed heavily purely for the sake of 
revenue ? Does the principal burden fall on the articles of luxury or 
necessity ? 

ii. By the present law what is the tax on spirits, malt liquors, to- 
bacco ? Is there any stamp tax now on commercial transactions ? 
What other articles are subject to an internal tax ? 

iii. What other countries now have inheritance taxes (Bastable, 
549-562) ? What is the smallest bequest taxed in our present law ? 
What is the lowest rate, and to whom ? the highest ? 



State and Local Taxes (§§ 586-592) 

a. Compare the opinions upon the single tax given in Shearman's 
Natural Taxation^ 115 f/ seq.^ and in Lusk's "Single Tax in Opera- 
tion," Arena, XVIII (1897), 79-89, with those expressed by Cohn, 
Science of Finance, 374-381, and by Seligman, Essays in Taxation, 
chap. III. 

b. For suggestions that may prove valuable to the tax systems of the 
future, consult Seligman, "Recent Reforms in Taxation," chap. X of 
his Essays; Adams, "Suggestions for a Revenue System," in his i^j- 
nance, 490-516; and Ely's "Taxation as It Should Be," Pt. Ill of his 
Taxation. 

1. Why is the general property tax so universal if its defects are so 
numerous ? Can the defects be remedied by proper administration ? 
Has this anywhere been done ? 

2. Can a land tax be successfully operated over a large territory ? 
Give your reasons in full. What is the best means of reaching personal 
property ? Can it be done by a local tax ? 

3. What are the objections to a locality's assessing income, inheri- 
tance, or corporation taxes ? to a state's using any or all of these unless 
other states do the same ? 

4. Have the ruling classes ever paid their full share of the taxes ? 
Is there any danger that democracy may seek financial reform through 
attacks upon the rich ? How may taxation be used in the future to 
solve some of the problems of society ? 



Taxation 483 

For the following, see state political code and finance reports. 

i. What proportion of your expenses in state, county, and city are 
paid by the general property tax ? Upon what is it legally assessable ? 
Compare the assessment upon real estate with that upon personal 
property for your county. What part of the latter probably escapes 
notice ? What is the tax rate for the city ? the county ? the state ? 

ii. Who is your assessor ? Does he assess for both town and 
county ? Have you county and state boards of equalization ? If so, 
how are they chosen ? How may any assessment be lowered ? 

iii. If you have a state corporation or franchise tax, learn whether 
the assessment is made upon the gross receipts, net receipts, or some- 
thing else, and ascertain, if you can, how successful the tax is. Have 
you any other taxes ? If so, what ? Give an account of each. 



CHAPTER XXVI 

MONEY 

General References 

Willoughby, Rights and Duties of American Citizenship, 281-292. 
Gide, Political Eco7iomy, 186-235. On the economic aspects of ques- 
tions relating to money. 
White, Money and Banking. Presents from gold standpoint a good 

historical summary of the experience of the United States with 

bimetallism, paper money, and banking. 
Watson, History of Coinage in the United States, On the history of the 

great coinage laws. 
Knox, United States Notes. Especially upon greenbacks. 
Bullock, Essays in the Mojietary History of the United States. 
Gordon, Congressional Cttrrency. Historical. 
Noyes, Thirty Years of A7nerican Fi7iance ii%(i^-\Z()^. Emphasizes 

the connection between business and government finance. 
Laughlin, History of Bimetallism in the United States. The best 

history of the subject from gold monometallist point of view. 
Andrews, An Honest Dollar. Advocates free coinage of gold and silver 

at a fixed ratio. 
Walker, International Bitnetallism. Principally historical. 
Giffin, The Case against Bimetallism. 
Darwin, Bimetallism. 

Taussig, Silver Situation in the United States, to 1 893. 
Abundant Hterature in periodicals from 1892 to 1900, most of which 

is controversial. 

593. The Two Functions of Money. — Money performs 
two entirely distinct functions in the world of business. It 
is a medium of exchange in everyday transactions, it also 
serves as a stajidard for deferred payments. 
Money as a (i) Instead of trading one thing directly for another, as, 
exchange^ ^'S' ^^^ sheep for a cow, persons who buy or sell use some 
third substance, which is given in payment for an article re- 

484 



Money 485 

ceived, or accepted in place of anything sold. Since the Gide, /'<?/. 
person who has cows for sale probably does not care to buy ig^igif' 
sheep, the convenience of a regular medium of exchange 
which is good anywhere and at all times for the purchase of 
anything he may desire is of the highest value. This func- 
tion is performed by currency, or substitutes for currency. 

(2) The money of to-day is, in addition, a standard for Money as a 
deferred payment. If a man borrows $5000 to-day, to be ^T'^^^^7^ °^ _ 
paid in ten years, it is very important to the lender that he ments. 
obtain at the end of that period a sum equal to what he 
loaned, and to the borrower that he be not obliged to pay 
more. The answer to the question how we shall ascertain 
what amount is exactly equivalent in ten years to the $5000 
is always that the same number of dollars in legal money 
shall be so considered unless the parties in the contract 
agree upon something else. One thing ought to be care- 
fully noticed. These two functions are not necessarily per- 
formed by the same substance — money — for it may be 
felt that 1^5000 in ten years will be worth more or less than 
the same number of dollars now, whereas some other com- 
modity might be found which would make it possible in the 
ten years to return exactly what was borrowed, therefore 
that other commodity is used as the standard of value in 
deferred payments. 

The reason why coin is used for both of these purposes 
is, it is the most convenient medium of exchange, and 
because its real value fluctuates less than that of almost 
anything else. 

594. Government and the Money System. — In order that Government 
people doing business may have a currency upon which they designates 

■^ •'^ ° •' ' ^ ^ what system 

can rely, this whole subject is left to the charge of the gov- of coinage 

ernment, with the idea of obtaining the best results for all ^^^ ^^^* 

. coins shall be 

concerned. The duty of government is not, then, to select used. 

any medium of exchange it pleases, or arbitrarily to legaUze 

some standard without considering whether it is adapted to 

the conditions ; but to learn what medium best serves the 

needs of the nation, and to protect the rights of those doing 



486 The American Federal State 

business for a long or short time. This work is largely 

negative and calls for as little interference as possible with 

the coin of the realm ; but requires, among other things, 

that the government should decide whether the country 

have monometallism or bimetalHsm, what shall be the weight 

of the coins in use, what paper money, if any, shall be issued 

by the government, and whether this shall be supplemented 

by bank notes, — certainly a very wide and important field 

of legislation. 

The legal 595, Effect of Bimetallism. — A nation has a bimetallic 

ratio and its gyg^gp^ when its mints are open to both gold and silver, and 
workings. ^ . 

any one having gold or silver bullion may take it to the 

Economy', ""^"* ^"^ ^^^e it Coined into dollars or any other coin 

194-198, 202- authorized by law. But in order that this may be possible, 

^^' the government must first tell how many grains of pure 

silver will make a dollar, and how many grains of gold a 

dollar contains. In other words, the government must 

establish a legal ratio, stating, for example, as ours did in 

1792, that it considers one ounce of gold equal in value to 

15 ounces of silver, and that, consequently, 24I grains of 

gold or 371^ grains of silver (fifteen times as much), if 

presented at the mint, would be coined into dollars. If this 

legal ratio happens to coincide exactly with the market ratio, 

that is, if one ounce of gold is actually worth in ordinary 

transactions 15 ounces of silver, both kinds of bullion will 

be brought for coinage. If the legal and market ratios 

differ, only one kind of buUion will come in for this reason. 

Assume that 24 grains of gold are worth as much as 371^^ 

grains of silver, then a person would certainly be foolish to 

take 24f grains and have it made into a coin that would be 

worth exactly the same as the 371^ grains of silver. He 

would, in short, put in 103 cents and take out 100, because 

the silver dollar is legally worth 100 cents. Hence, it comes 

about that when the market ratio differs from the legal ratio, 

only one metal is coined at a time, the other metal being 

worth more in the form of bullion than in the form of coin. 

Consequently, under a bimetallist system, since the legal 



Money 487 

ratio is almost never exactly the same as the market ratio, 
only one metal is likely to be coined at a time. 

596. Advantages and Disadvantages of Bimetallism. — Difficulty in 
Two things need to be considered in this connection that maintaining 
affect the practical usefulness of bimetallism, (i) The legal ratio. 
market ratio does not greatly depend upon the legal ratio, 
i.e. the legal ratio must accommodate itself to the market 202^'^^ ~ 
ratio, and not the reverse. Why? Because the value of 
gold and silver, like that of everything else, depends upon 
the demand for and the supply of each. The demand for 
both metals comes largely, but by no means wholly, from 
the governments of the world. If the demand were con- 
stant and the supply uniform, few difficulties would arise ; 
but this is the exception, marked changes in the market 
value of each, and therefore in the market ratio of one to 
the other, being more frequent. 

(2) Under a bimetallist standard, while but one metal is Advantage of 
likely to be coined at a time, this metal is the one whose "^^"S the 
value has decreased. But the coinage of this one increases o°botifgoid^ 
the demand for it, and tends to raise the price of every ounce and silver. 
of it. If the market ratio is but little different from the legal 
ratio, this demand will bring the two ratios together. Then 
if the second metal is coined for a time, because " cheaper," 
a like result follows. Consequently, the price of the one 
coined, i.e. the cheaper one, will not increase indefinitely, 
but only until its price is high enough so that the other 
becomes the cheaper. By this process of a demand first 
on the supply of one and then on that of the other, it is not 
possible for the price of either to go on rising continuously, 
for as soon as it becomes the dearer metal the demand is 
greatly diminished. Bimetallism, therefore, prevents a great 
rise in price of either metal, and draws upon the world 
supply of both for its stock of coins. Yet experience proves 
that the market ratio does not rapidly approach that estab- 
lished by law, as we can see below (§ 598), where the two 
were not very dissimilar ; and as gold and silver are easily 
shipped from one country to another, the market ratio is 



488 



The American Federal State 



Explanation 
of terms 
dearer and 
cheaper 
metals. 



Nature of 
monomet- 
allism. 



Chief disad- 
vantage. 

Gide, 207- 
211. 



never likely to become the same as the legal one unless 
there is a uniform international ratio and an international 
demand. The great advantage of bimetallism, namely, that 
it tends to use from the world's stock of both metals, can be 
perfectly obtained only under these conditions. 

In the paragraph just given, the expressions dearer and cheaper 
metals are used. They mean merely this: that if the legal ratio is 16 
to I and the market ratio 20 to I, then in the market one ounce of 
gold can be exchanged for twenty ounces of silver, so that silver is 
cheaper than the law-making body believed it to be when they estab- 
lished a legal ratio of 16 to i, gold being dearer. If, on the other 
hand, one ounce of gold is worth only twelve ounces of silver in the 
market, gold is the cheaper metal and silver the dearer one. If the 
legal ratio is 16 to i, and that of the market 12 to I, under bimetallism 
only gold (which is then cheaper) will be coined until the market ratio 
exceeds 16 to i; but if the market ratio is 20 to i, silver only will be 
coined till such a time as the increased demand for silver shall increase 
its value as compared with gold, and the market ratio becomes less 
than 16 to I. 

597. Monometallism. — When the mints of a country are 
open to the free coinage of but one metal, that nation has a 
legal monometallic standard. It does not then trouble itself 
about the market ratio between the two metals, but fixes 
the number of grains in its various coins, and permits any 
one to exchange for the coin desired that a^mount of the 
metal which is preferred by the government. ' The chief dis- 
advantage of this system is that it makes an extra demand 
upon just one metal, so that the value of an ounce of that 
metal is likely to increase continuously, and not, as under bi- 
metallism, until a definite limit is reached. For example, 
under monometallism the actual value of a dollar (measured 
by what it can purchase) may increase at the rate of one 
per cent a year, so that a person borrowing ^5000, at the 
end of ten years would really pay back $500 more than he 
received. The number of dollars repaid would be only 
5000, but they would be equal in actual value to $5500 at 
the time the loan was made. This defect may be avoided 
partially by having the government buy and coin some of 



Money 489 

the other metal. This can be done only when each coin Disadvan- 
of the second metal would possess less value as bullion than *^^^ partially 

'^ removed by 

similar coins of the first ; that is, if gold is subject to free subsidiary 
coinage, a silver dollar that contains a smaller amount of coinage. 
silver than can be purchased in the market with a gold White^ 
dollar may be issued by the government, provided the ^"^^ "-^^ 
government guarantees that it shall be accepted by the 33-37. 
government and by the people on a par with the gold dol- 
lar; but if the silver in this same dollar is worth more in 
the market than the gold bullion in the gold dollar, no one 
would pay his debts in silver coins, but would sell the silver in 
them for gold, take the gold to the mint, and get coins for it. 

598. Mono- and Bi-metallism in the United States (1792- Ratio of 15 
1870). — What has been our experience with these money ^°^|^792- 
systems ? The first definite action taken by the national 
government was in 1792, when, upon the recommendation coinage in 
of Hamilton, it was decided to have free coinage of both u. s., 53-77- 
gold and silver at a ratio of 15 to i, which was a little 
less than the market ratio then and later. The weight 
of the silver dollar was fixed at 37 1| grains fine, and of the 
gold dollar at 24I grains of pure gold, with alloy added in 
each. As there was very little gold or silver in this country 
the coinage was light, and the coins produced were almost 
all exported. 

In 1834 the ratio was changed to practically 16 to i, Laws of 1834 
which was higher than that of the market, bimetallism ^"*^ ^^^^' 
being retained. The silver dollar contained the same Ratio of 16 
amount of pure metal, but the gold dollar was reduced in 
weight to 23.22 grains fine. A very great increase in the Watson, 
coinage of gold followed, while that of silver dropped off. 
After 1850 the gold production in CaUfornia increased the 
supply of that metal to such an extent that an ounce of gold 
would sell for less than i^^ ounces of silver in ordinary 
transactions, and silver bullion rarely sought the mint. In 
order to have fractional currency for business. Congress in 
1853 made the silver coins of a smaller denomination than 
one dollar lighter than they had been, and had the govern- 



490 



The American Federal State 



The law of 
1873- 

Gordon, 
Cong, Cur- 
rency, 96-102. 

White, 
Money, 213- 
333. 



Bland- 
Allison act of 
1878, 

White, 198- 

202. 



Sherman act 
of 1890. 

White, 202- 
208. 



Act of 1900. 



ment buy the silver and make the coins. The silver dollar 
remained subject to free coinage, though it was worth more 
in the form of bullion than of dollars ; so an American silver 
dollar was almost unknown at that period. 

599. •♦The Battle of the Standards" (1870-1900). — 
The cheap paper money of the Civil War drove all metalHc 
currency out of use for a long time afterward except at a 
heavy premium. While this condition lasted, it was sug- 
gested in 1870 that the free coinage of the silver dollar be 
discontinued. As only gold would have been coined even 
had we been on a hard money basis, the question awakened 
little interest, and in 1873 a law was passed which practically 
placed us upon a gold monometallic basis with free coinage 
of gold only. But the increase in the production of silver 
about that time, together with a reduction in the demand, 
because Germany changed to gold monometallism and 
France expected to do so, raised the market ratio above 
16 to I, and aroused a demand for renewed silver coinage. 

This demand was recognized in the Bland- AlUson bill of 
1878. As originally proposed, it reestablished bimetaUism 
with a legal ratio of 16 to i, and in that form passed the 
House ; but in the Senate a change was made by which the 
government was to buy from two to four million dollars' 
worth of silver bullion every month and coin it into silver 
dollars. The compromise was accepted by the House and 
vetoed by President Hayes, but passed by large majorities 
over his veto. 

In 1890 the Senate passed a silver free coinage bill, which 
was altered at the wishes of the House much as the bill of 
1878 had been by the Senate. As enacted into law, it 
authorized the Secretary of the Treasury to buy 4,500,000 
ounces of silver a month, paying for it with a new kind of 
legal tender paper. Some of this bullion was to be coined. 
The law was repealed during the panic of 1893. 

The House and the Senate could not agree upon a 
coinage law satisfactory to both till 1900, when the law 
considered below was passed. 



Money 491 

600. Paper Money in our Early History. — Paper money Three kinds 
has been used more than coin during our history. It has "^p^p^""- 
been of various kinds : ( i ) that issued by the government 

on its credit, (2) that given out by the government instead 
of coins which were then deposited in the vaults, and (3) 
that issued by banks with the consent of the government. 

In colonial times the craze for cheap money spread The colonies 
through the country hke epidemics, every colony issuing ^"5 *^ *~'°"" 
some form of paper at different times. This invariably 
depreciated. During the Revolutionary War and the Con- jj^^^'^^ 
federation. Congress and the state legislatures tried to make Politics, 14- 
money by the printing-press, with such disastrous results that ^^' 
the constitutional convention of 1787 forbade the issuance White, 120- 
of bills of credit by the states, and placed its stamp of dis- 
approval upon similar action by the central government, 
though not forbidding it. 

As there was so little coin during the early national period Bank notes 
and no government paper, most of the business was done (^789-1860). 
with notes issued by the state banks or by the two national Upton, 42- 
banks. Those of the latter were quite reliable, but the 
former never gained more than a local circulation, and were 
usually far below par, hampering trade to a very great extent. 

601. Paper Money since i860. — During the Civil War Thegreen- 
the government was in such need of money that in 1862 ^^^^^• 
and 1863 Congress passed three bills permitting it to issue White, 
^450,000,000 in legal tender treasury notes, popularly known ^^^^' ^'^ ~ 
as " greenbacks." These became worth so much less than 

11 • r • 1 • 1 • 1 Knox, U. S. 

gold that they drove all com out of circulation, and remained Notes, 117- 
below par until the government began to redeem them in i47- 
gold, January i, 1879. They were at first looked upon purely Upton, 67- 
as a war measure of doubtful constitutionality, and after the 9^* 
war were retired rapidly till hard times made people cry out 
for the cheapest money they could get, preferably more 
greenbacks. Their constitutionaUty was denied by the Supreme 
United States Supreme Court in 1869: but this decision 9°'^''? 

^ ' ' decisions. 

was reversed in the Legal Tender Cases a year later. In upton im- 
JuilUard v. Greenman ( 1 884) , an almost unanimous court 170. 



492 



The American Federal State 



Knox, 156- 

166. 

Treasury 
notes of 1890, 
Gordon, 
Cong. Cur- 
rency, 183- 
187. 

Gold and 
silver certifi- 
cates. 

Gordon, 173- 
183. 



Establish- 
ment and 
character. 



Upton, III- 
126. 

Gordon, 151- 
172. 

White, 
Money, 406- 
418. 



The money 

system 

rearranged. 

References at 
end of chap- 
ter. 



held that Congress might issue paper in time of peace as 
well as in war, and in what quantity it pleased. 

The treasury notes of 1890 paid out for silver bullion 
purchased under the so-called Sherman act of that year are 
legal tender, except where otherwise specified in the con- 
tract. 

For many years we have had gold and silver certificates, 
which are issued in place of gold or silver coins, simply 
because the paper is easier to handle. The metalUc cur- 
rency is placed in the government vaults, and the substitute 
paper is placed in circulation. 

602. The National Banking System. — A good part of our 
business is done with a form of paper issued by banks char- 
tered under national law. The present national banking 
system is an outgrowth of the exigencies of the Civil War. 
The government desired to find a market for its bonds, so 
the Treasury department was led to propose that national 
banks be permitted to issue notes if they would buy bonds of 
a slightly greater value than their total circulation of notes. 
These notes were not and have not since been legal tender, 
but each bank guaranteed to redeem its notes in legal money, 
and the value of the bonds, which were left with the gov- 
ernment, was sufficient to insure payment in case the bank 
failed. Competition with the state banks was avoided by 
placing on the issues of the latter a tax of ten per cent ; and 
general circulation of the notes was assured by the govern- 
ment's agreeing to receive them except in payment of duties, 
and not to pay them out for interest on the public debt or 
to redeem its own paper. 

603. The Act of 1900. — The currency law signed by the 
President, March 14, 1900, reformed and systematized the 
whole money system of the United States. A number of its 
provisions deserve enumeration, (i) The gold dollar was 
made the standard unit of value, and all forms of money 
issued or coined by the government are maintained at a par- 
ity with gold. (2) The treasury notes of 1890 were to be 
retired as rapidly as possible, their place in circulation being 



Money 493 

taken by new silver coins or silver certificates. (3) Green- 
backs that were paid into the Treasury were not to be reissued 
except for gold ; while for the redemption of greenbacks a 
gold reserve of ^150,000^000 is to be maintained, if neces- 
sary, by the issue by the Secretary of the Treasury, of bonds 
bearing not over three per cent. (4) In the office of the 
Treasurer of the United States two divisions known as the 
divisions of issue and redemption were created to facilitate 
business. (5) New regulations regarding the denomina- 
tions of the different kinds of paper money and bank notes 
to be issued were enacted so that there should not be, for 
example, one-dollar bills in each form of paper, but that gold 
certificates should not be for less than ;^20 each, silver cer- 
tificates only in denominations of i^io and less, and the 
others in like manner. (6) That portion of the public debt 
which consisted of three, four, and five per cent bonds pay- 
able on or before August i, 1908, might be exchanged for 
thirty-year two per cent bonds. (7) National banks might 
be organized in small towns with a capital as low as ^25,000, 
and were further permitted to issue notes to an amount not 
exceeding the par value of the new two per cent or other 
United States bonds deposited at Washington. It will thus 
be seen that the somewhat chaotic money scheme which 
existed before 1900 was simpHfied and reduced to a sem- 
blance of order in this most important money law. 

604. Present Forms of Money. — After 1902 there will be Different 
seven kinds of money in use. (i) The first includes the different varie- forms of 
ties of gold coin. (2) The second covers the different forms of silver currency, 
from the silver dollar to the ten-cent piece, the silver dime, quarters, and 
half-dollar pieces containing a smaller proportion of pure metal than 
the dollar. (3) The minor coins are the nickel five-cent piece and the 
cent. (4) The gold certificates and (5) the silver certificates furnish 
over one-fourth of the money in circulation; while the (6) treasury 
notes or greenbacks, and (7) the national bank notes complete the 
system, the notes of 1890 having been retired. 

Noticing the figures given below we shall see that a large part of our Subsidiary 
currency depends for its commercial value upon the credit of the gov- currency, 
ernment. Only the gold is worth as much as its face value indicates. 



494 



The American Federal State 



Legal tender 
quality of 
different 
forms. 



The silver in the silver coins is worth less than half what the coins pass 
for every day. The notes issued by the United States are maintained 
at par by the willingness of the government to redeem them in gold. 
Therefore the actual value of these forms of money is less than the face 
value by an amount but little less than the entire stock of gold in the 
country. So that a large part of the value of United States currency 
is represented by national credit. 

The gold coins are legal tender to any amount, and the silver dollar 
is unlimited tender unless otherwise specified in the contract. Sub- 
sidiary silver coinage is legal tender to the amount of ^lo, but the 
nickel five-cent piece and the cent for only twenty-five cents. United 
States notes are a legal tender for the payment of all debts, public 
and private, except duties on imports and interest on the public debt. 
Certificates of the different classes are not legal tender, but are at 
any time exchangeable for the corresponding form of currency. 

The amount of currency in the United States, October i, 1900, is 
represented in the following table : — 





In Circulation 


In Treasury 


Total 


Gold coin 


1620,047,309 -> 
209,110,349 J 


#230,131,162 


#1,059,288,820 


Gold certificates . . . 






Silver dollars .... 


71,176,265 -1 
420,265,735 1 


6,907,343 


498,349,343 


Silver certificates . . 






Subsidiary silver 


79»432,i93 


6,568,555 


86,000,748 


Treasury notes of 1890 


67,600,188 


113,812 


67,714,000 


United States notes . . 


324,506,314 •> 
1,820,000/ 


20,354,702 


346,681,016 


Currency certificates . 






National bank notes . 


319,336,630 


9,079,798 


328,416,428 


Totals .... 


fei 13,294,983 


^273.i55'372 


#2,386,450,355 



The amount of the certificates is included in the totals under the 
form of currency for which they are a substitute, and no account is 
taken of the deposits made in the treasury to counterbalance these. 

QUESTIONS AND REFERENCES 

Monometallism and Bimetallism (§§ 593-597) 

I. What characteristics must a good medium of exchange possess? 
Why is a metal better adapted for use as money than anything else? 
Why must it be a precious metal ? 



J 



Money 495 

2. Can you suggest anything else whose value would be as station- 
ary as that of gold, i.e. that would fluctuate less from year to year or 
from decade to decade? How would the price of wheat do as a stand- 
ard of value for deferred payments? the average price of all grains? 

3. What was the market ratio between gold and silver a thousand or 
more years ago? five hundred? fifty? last year? Does gold seem to 
have " appreciated " the last thirty years, i.e. is an ounce of gold really 
worth more now than then? What part of the recent fall of prices in 
different things may be attributed to the decreased cost through the use 
of machinery? through improved means of transportation? To what 
extent may it be due to the appreciation of gold ? 

4. Would gold monometallism be possible for all nations in the 
future if the output of gold becomes small? if the demand for gold 
increases still more, the gold production continuing as at present? If 
the gold output should cease, would we not be obliged to go back to 
bimetallism ? 

5. With the market ratio between gold and silver as at present, 
which metal would be coined if we had free coinage at a legal ratio of 
16 to I or 20 to I? What are the chances that the increased demand 
for silver by the United States alone (the other nations still clinging 
to the gold standard) would raise the price of silver and decrease the 
market ratio to 20 to I ? If it did not, what would become of our 
supply of gold coin ? 

History of Currency in the United States (§§ 598-604) 

a. On the law of 1900, consult R. P. Falkner, in A. A. A., XVI 
(1900), 33 et seq.; J. F. Johnson, in P. S. Q., XV (1900), 482-507; 
F. W. Taussig, in Quar. Jol. Econ., XV (1900), May; and J. L. Laugh- 
lin, xajol. Pol. Econ., VIII (1900), 289 et seq. 

1. Show how the Treasury department has influenced the financial 
system of the United States. In what ways may it exercise its discre- 
tion in regard to our money system to-day? 

2. Could we have had the industrial development of recent years 
without a national currency? What is the proper place of paper 
money in a national system of finance? What sections or occupations 
have always favored cheap money ? Which ones desire a stable cur- 
rency? Explain why this is so. 

3. Would it have been wise to prohibit Congress from issuing paper 
money in times of peace? What danger is connected with this power 
to make its paper legal tender? 

4. Is it better to have a large supply of greenbacks in circulation, 
or no government paper but a great many national bank notes? Do 



496 The American Federal State 

we need a greater circulation of money than we now have? What 
percentage of the business of the country is done without the use of 
currency at all? 

i. In what denominations are the different coins and forms of paper 
issued by the government? What kind of coin or paper in circula- 
tion represents a greater value than any other, i.e. which is the most 
common? 

ii. What proportion of the money in the country is in the Treasury 
of the United States ? In what form is most of this (do not count the 
silver and gold for which certificates have been issued) ? Compare the 
amount of gold in circulation with that of silver (or silver certificates); 
with government paper; and with national bank ifotes. Are silver 
certificates or silver dollars used more in ordinary business? 



A 



CHAPTER XXVII 

COMMERCE AND INDUSTRY 
General References 

On foreign commerce : — 

Gide, Principles of Political Economy, 236-271. International trade, 

and free trade or protection. 
Lalor's Cyclopedia, Articles by Mason on " Protection," by D. A. 

Wells on "Free Trade," and by W. C. Ford on "Tariffs in the 

United States." 
Taussig, Tariff History of the United States. An excellent summary 

from free-trade standpoint. 

On internal commerce : — 

Dos Passos, The Interstate Commerce Law. Provisions and explanations. 
Adams, "A Decade of Federal Railway Regulation," in At. Mo., 

LXXXI (1898), 433-443- 
Adams, Railways, their Origin and Probletns (1878). 
Hadley, Railroad Transportation (1885). Principles of the subject 

and methods of control in Europe and America. 
Johnson, "Government Regulation of Railroads," in P. S. Q., XV 

(1900). 
Dixon, F. H., " Railroad Control in Nebraska," in P. S. Q., XIII 

(1898), 617-646. 
Hendrick, Railway Control by Commissions (1900). European and 

American experience. 
Dixon, State Railway Control, with a history of its development in 

Iowa. 
Clark, " State Railway Commissions," in Amer. Econ. Assn., VI (1891). 

On control of industry : — 

Walker, A. F., "Anti-trust Legislation," in Forum, XXVI (1899), 

223-236. 
Clark, The Control of Trusts. 

2K 497 



49^ 



The American Pederal State 



Government 
regulation of 
exchange 
and produc- 
tion. 



Asserted 
merits of free 
trade. 



Cook, The Corporation Problem, on railways as well. 
Jenks, The Trust Problem, especially chap. XI, 

On labor legislation : — 

Wright, Industrial Evolution of the United States. 

Stimson, Labor in its Relation to Law. The subject in outline. 

Stimson, Handbook to the Labor Law. Principles and details of the 

law (1895). 
Belles, Employer and Employee. 
In periodical indexes under Tariffs, Free Trade, Protection, Railways, 

Interstate Commerce, Trusts, Labor, Legislation, Strikes, etc. 

605. Trade, Industry, and the State. — It is an idea long 
outgrown that the relations between a government and the 
production and exchange of a nation's goods is one existing 
solely for the sake of warding off actual dangers to trade 
and industry. Fortunately or unfortunately it has been the 
practice for some centuries at least to adopt every possible 
means to foster foreign commerce and domestic manufactur- 
ing, many of the means being artificial in the extreme, some 
of which were abandoned at an early date. At present by 
far the most prominent evidences of government interference 
in the interest of industrial and commercial development are 
the systems of restrictive tariffs in use by all of the great 
nations except Great Britain. Others that deal with inter- 
national trade are reciprocity treaties already considered 
(§ 317)* S'l^d the system of consular offices (§ 355) pri- 
marily for the purpose of aiding commerce. Regulation of 
domestic trade has not been very extensively tried, being 
intended rather to protect the individual from the great 
carrying companies than to stimulate exchange. The laws 
relating to industry and labor, so common in the states, are 
in like manner to keep large producers within bounds, and 
for the protection of the public. 

606. " Free Trade." — It is very far from our present pur- 
pose to do more than enumerate a few of the claims put forth 
by the adherents of protective and free-trade doctrines, 
but a question which has furnished so much material for 
political discussion deserves a word of comment. It is safe 



Commerce and Industry 499 

to say that the " free-trader " of America rarely believes in a Gide, Poi. 
complete abandonment of the protectionist system which ff^-'^^'^'e 
the United States has used so long, but desires a minimum 270. 
of protectionist duties, the bulk of the revenue being ob- 
tained from articles of luxury or things not produced in 
this country. He feels that if it is a good plan to have 
free trade within a country so large as ours, it ought to 
be beneficial to have few restrictions upon that between 
nations. He asserts that protection is professedly artificial 
and was at first intended to be used only until our in- 
dustries had passed the "infant" stage, whereas the rate 
of duties has been increased instead of lowered. In his 
opinion this has raised the price of all commodities directly 
or indirectly affected by the tariff schedules, has prevented 
healthful foreign competition, and has diminished the amount 
of business done at home and abroad. 

607. "Protection." — The real protectionist looks at Alleged ad- 
things in an entirely different light from the true free-trader, ■^^"^^s^s °^ 

■' ° protection. 

He believes that the disadvantages of production in a com- 
paratively new country, including the higher wages paid here ^'^*' * 
than in Europe, require just such an artificial barrier as a 256-260/270, 
protective tariff to keep out foreign products. He claims '^7^' 
that without this help we could never have developed the 
industries we have, nor could we have maintained a rate of 
wages much above that of Europe. The tariffs have limited 
importations, with their attendant evils. A competition we 
could not have met has been avoided. He admits that the 
cost of production has been raised and prices increased; 
but even when he does not feel that those are benefits in 
themselves, he urges that with low prices few persons would 
have been employed, and those at starvation wages, so that 
in the general prosperity which has come from protection, 
high prices mean less of a burden than low prices would be 
under the low wages and less-developed industry of a non- 
protectionist system. 

608. Our Early Tariffs. — Although the right to levy Tariffs from 
duties upon imports was conferred upon the national govern- ^^89 to 1815. 



500 The Aniericait Federal State 

Taussig, ment because of its value as a source of revenue, the first 

Tariff Hts- tariff under the Constitution (1789) recognized the need of 

protection of certain industries Hkely to be useful in time 

of war. The rate on most goods was only five per cent, 

and the highest was but fifteen, though, of course, the heavy 

freight charges of that day were in a sense an additional duty. 

Tariffs of The protectionist principle, however, dates not from 1 789, 

i8i6and j^^^ ixo'cci 1816, when the duties upon a large number of 

articles were raised in order that the different branches 

'^^ «^^^' ^^~ ^^ industry started under the embargo and during the War 

of 181 2 might be able to hold their own against the very 

large importations from Europe. The heaviest duties were 

those on cotton and woollen goods, which were twenty-five 

per cent. These were raised to thirty-three and one-third 

per cent in the tariff of 1824, which also protected more 

fully iron, wool, and hemp. 

The tariff The tariffs from 1828 to 1843 were dictated by other con- 

(1828 to siderations than the economic needs or desires of any sec- 

1843). ^ 

tion, chiefly by the political opinions of a comparatively 

^aussig, 79- ^^^ persons. That of 1828 was a curious mixture of high 
rates for certain manufactures and raw materials, with little 
or no protection for the opponents of those in power ; but 
its worst features were remedied in 1832, though not to 
the satisfaction of the South Carolinians, who objected to the 
continuance of what they claimed was a sectional measure 
especially injurious to their state (§ 177). The threat made 
that South Carolina would nullify the existing tariff and 
oppose its enforcement, influenced Congress to pass a new 
law which provided for biennial reductions in the rates, 
until in 1842 everything was brought to a level of twenty 
per cent. But this was supplanted in 1842 by a new and 
more protective tariff. 

Tariffs of Four years later the opponents of the " American system " 

1846 and passed a so-called free-trade measure which placed duties 
of twenty-five or thirty per cent upon the articles for which 

ii^^ilf-iKs' protection was chiefly desired. This remained in force till 
i860, with some slight reductions in 1857. 



IIS, 156-158. 



Commerce and Indzistry 



501 



609. The Development of a highly Protective Tariff. — 
With i860 begins a new era in the history of the tariff, 
marked by higher and more protective duties. In 1861, 
before Sumter had been fired upon, the Morrill tariff was 
passed, which established rates higher than those formerly 
in use, and designed to aid particular industries. A year 
later this was replaced by another, which, after constant 
amendment, gave way in 1864 to one whose rates were 
much more than double those created in the Morrill act. 
The reason for this was twofold. The enormous expendi- 
ture of the war had necessitated the creation of a vast inter- 
nal revenue system (§ 582), which included taxes on every 
form of manufacture, increasing the cost of products from 
probably one-twentieth to one-fifth of the whole. The 
increase in customs rates was expected to equal this at least ; 
but was also designed to increase the revenues and protect 
the manufacturers. As the internal taxes had covered all 
branches of manufacturing, the protective rates were just as 
inclusive ; but the aboHtion of the internal tax after the war 
did not lead to anything more than a temporary reduction 
in the tariff (1872), as the hard times of 1873-1875 fur- 
nished an excuse to reestablish the old rates, except for such 
non-protective duties as those on tea or coffee. 

The tariff of 1883 was a concession to a widespread de- 
mand for reduction in duties, but it made but few essential 
changes in the protective system. Agitation for a tariff for 
revenue only failed to receive the support of the people, 
and the fifty-first Congress proceeded in 1890 to pass the 
most truly protective law in our history, commonly known 
as the McKinley bill. Sugar and a few other articles were 
placed on the free list, the growers of the former being 
aided by a bounty equal to the duty on sugar before 1890. 
Rates on all industrial products needing protection were 
increased, though the total revenue was intentionally dimin- 
ished. In connection with the tariff was a reciprocity arrange- 
ment by which we might favor or discriminate against nations 
-that treated imports from the United States well or ill. 



Changes of 
the Civil 
War. 

Taussig, 158- 
170. 



Acts of 1872 
and 1875. 

Taussig, 179- 
191. 



Tariff of 
1883. 

Taussig, 230- 
250. 



McKinley 
tariff (i8go). 

Taussig, 251- 
283. 



$02 The American Federal State 

Gorman- 6io. Recent Tariffs. — The losses sustained by the Repub- 

1 son tariff jjj,g^jjg g^fj-gj. jj^g passage of the act of 1890 was held by the 
Democrats to be an expressed approval of their tariff pro- 
gramme. In 1893 the House accordingly agreed upon the 
Wilson bill, which placed most raw materials upon the free 
list, and reduced the protective rates to some extent, an 
income tax being expected to furnish sufficient additional 
revenue for the annual deficit. The Senate refused to 
concur with the House, and the result was a compromise 
that was based upon no distinctive principles, and which 
became law without President Cleveland's signature. 
Dingley tariff This was replaced in 1897 by a new tariff enacted for the 
(1897). double purpose of increasing the revenues and restoring 

something like the McKinley rates on raw materials and 
manufactured articles, with a return to the method of reci- 
procity previously in use ; but the new measure was in one 
respect radically different from that of 1890 in its duty upon 
sugar. 
Principles for In the tariffs of the future it is to be hoped that the whole 
uture tan s. g^|^jg(,j. ^f revision may be left as far as possible to those 
whose knowledge and disinterestedness shall guarantee pro- 
tection of the public welfare against the irregularities placed 
in tariffs ever since 1828 for the benefit of special persons or 
interests. These tariffs, whether highly protective or espe- 
cially for revenue, ought to be the embodiment of definite 
and scientific principles, and not pieces of patchwork ; while 
tariff changes should be no more frequent nor radical than 
the best interests of the public demand, for uncertainty in 
the permanence of schedules and rates may be more disas- 
trous to business than a defective tariff. 
Government 6ii. Government and Domestic Commerce. — The inland 
aid to rail- ^^^^^ ^^ ^^^ United States has been aided or controlled by 

ways and 

canals. the State governments if conducted entirely within state lines 

Hadiey, A. '^^ ^Y *^^ national government when of an interstate charac- 
T., in Laior, ter. The era of government enterprise in building of roads 
III, 820-822. ^j. j^gj^g^ig belonged principally to the first half of the nine- 
teenth century, before the construction of railways reduced 



Commerce and Industry 503 

the importance of these cruder means of communication, but 
still continues in the opening of new waterways by the states 
and the improvement of rivers and the enlargement of 
border canals by the United States. The most conspicuous 
examples of aid furnished private parties were in connection 
with different railways between 1850 and 1872, to which 
grants were made by the national government either directly 
or through the states, the total area of the land given ex- 
ceeding that of the two Dakotas and Nebraska. Subsidies 
in money were also made both by the states and the nation. 
For example. New York expended in the neighborhood of 
;^ 1 0,000,000, most of which was not properly secured ; while 
the United States loaned to the Union, Kansas, and Central 
Pacific railways a sum of more than $60,000,000, a part of 
which has been repaid with accrued interest and another 
part without interest. 

612. The Beginnings of State Control. — The problems Encourage- 
of to-day regarding domestic commerce are essentially those ^j^^n reguia- 
of the railway. So important have the railways been in de- tion. 
veloping our resources of every kind, particularly in less- set- Hadley, 
tied regions, that until sometime after the Civil War it was Railroad 
the policy of all of the states to encourage if not to aid the tioTvzl-xlq. 
extension of new Hnes. Railway speculation was therefore 
common, and we came to have not only numerous compet- 
ing systems in the older states, but extensive ones over un- 
tenanted prairies. As the amount of business did not war- 
rant so many railways, each took advantage of every means 
possible to pay expenses. The claim was made justly by 
persons shipping goods that where there was but one line, 
the rates were exorbitant, as the railway might charge what 
it pleased, the shippers being completely at its mercy. It 
was further asserted that when lines connected two cities, 
since there was keen competition between these points, the 
rates from one to the other were often below cost, and that 
the railways made the loss good by charging extra on local 
traffic, shippers therefore being obhged to pay much more 
for a short than for a long distance. This, of course, was un- 



504 The American Federal State 

just. The railways themselves tried to partially remedy the 
difficulty by forming combinations or pools of competing 
lines, in which they agreed upon the rates to be charged and 
the amount of freight each line should carry. This was 
a simple measure of self-protection to avoid "cut-throat" 
competition. But the governments, influenced by the ship- 
pers, attempted a different solution of the problem. State 
commissions were created, often with power to fix rates and 
prevent pools. These usually acted upon the theory that 
the railways could afford to carry freight from any and all 
points for the charges at which it was carried between two 
points that enjoyed competitive rates. Without trying to 
follow the direct and indirect effects of this control, we need 
notice only that it proved in many cases extremely disas- 
trous to the railways, and hence injured the communities 
served by them. 

Professor Hadley, in his book on Railroad Transportation (1885, 
p. 142), called attention to certain aspects of railway control that many 
of the commissions before and since have overlooked. He says: 
" The [railway] problem is comparatively new in the United States. It 
is old in Europe; and the result of European experience has been to 
give up trying to prohibit pools and discrimination at the same time. 
It is probably not too much to say that no law has ever seriously dis- 
couraged either of these things without at the same time encouraging 
the other. That this is so, is plain matter of history. It is not hard to 
explain why it must almost of necessity be so." 

Formation of 613. The Interstate Commerce Commission. — One diffi- 
the commis- culty encountered by these state commissions was that most 

sion. . , ,. 

of the hnes ran mto other states. As mterstate commerce 
in At^Mo ^^^ according to the Constitution left to Congress, the com- 
Lxxxi missions at first did nothing, and then attempted to apply 

the regulations made for purely state railways to those hav- 
ing interstate commerce as well. This was at first permitted 
on the ground that the states might act if Congress did noth- 
ing, but in 1886 the Supreme Court of the United States 
decided that this state regulation of interstate trade was ille- 
gal. The next year, therefore, the Interstate Commerce Act 



(1898), 433- 
435 



Commerce and Industry 505 

was passed, which declared that all pools affecting interstate 
trade were illegal, that no person should be charged more 
than another for a similar service nor for a short than for a 
long haul, and provided for a national commission of five 
members to carry out the act, giving them power to investi- 
gate rates and pronounce them unjust if necessary. The Work of the 
commission has succeeded in introducing a great many uni- <=o™""ssion. 
formities in financial and other methods, has gathered a Adams, «<?«</., 
vast amount of information that throws light upon the rail- 435-443- 
way problem, and has at times been able to equalize rates ; 
but it has failed to exercise a very satisfactory control over 
the roads or to prevent combinations. Suggestions have 
been made that its power be enlarged particularly by giving 
it power to fix rates, but judging from the experience of the 
state commissions, when we appreciate also the great terri- 
tory to be covered and the extreme difficulties encountered, 
the problem is much too complex to be so easily solved. 

National control over combinations made by railway National 
employers or employees for the purpose of restraining trade ^f jo^'q^* ^^ 
or conspiring against it can be fully exercised under the 
anti- trust law of 1890. By virtue of this law, several railway 
associations have been declared illegal by the courts. 

614. State Railway Regulation. — As with the subject of Difficulties in 
taxation, but to a greater extent, the difficulties of proper '=°"'''°^' 
railway regulation are greatly complicated by our federal 
form of government ; for the systems of state and national 
control must harmonize and work together if they are to be 
at all effective. Further, the problems of the railway, like 
those of taxation, the money standard, the tariff, corpora- 
tions and others of somewhat less importance require a con- 
siderable knowledge of economic laws and existing condi- 
tions in order that we may not, as so often in the past, do 
more harm than good by government interference. 

Some of the thirty-one state commissions have taken Methods 

these facts into consideration and have proceeded with cau- °^.^***^ '=°'"- 

^ missions. 

tion. Most of these have belonged to the class of commis- 
sions without power to fix rates or prevent combinations, and 



5o6 



The American Federal State 



Hadley, 
Railroad 
Trans., 
134-145- 

Dixon, State 

Railway 

Control, 

20I-2II. 

Clark, "State 
Railway 
Commis- 
sions," in 
Amer. Econ. 
Assn., VI 
(1891), No. 
VI. 



State control 

imperfectly 

developed. 



not to those " with power." Their aim has been to investi- 
gate and report, and the principle upon which most of these 
commissions "without power" proceed is that a proper 
system of accounting, coupled with as full publicity of railway 
affairs as possible, will help to remedy the evils in time. 
It is generally believed that these commissions have done 
more for the public than those with power to fix rates, which 
have relied chiefly upon that means, or the denial of the right 
to form pools, to protect shippers ; but the more satisfactory 
results of the less powerful commissions may be due to more 
favorable circumstances quite as much as to different meth- 
ods. That some regulation is essential to prevent unneces- 
sary and unwise multiplication of railways, to avoid the worst 
forms of mismanagement, and to keep great transportation 
companies from using their immense power by sacrificing 
the public to their own ends, is apparent; but the exact 
methods to be best applied by state and national govern- 
ments constitutes one of the most deUcate and difficult 
problems of the future. 

615. Government Restraint of Industry in the Past. — The 
control of industrial corporations is exclusively an affair of 
the states, the national government having been given no 
jurisdiction of industry by the Constitution. In ante-bellum 
days, when factories were so small that each had a local 
rather than a national market, state regulation sufficed, 
though as a matter of fact Httle was attempted. One prac- 
tice, however, became common even then, for almost all of 
the states ceased to pass special acts for each company that 
wished incorporation, but passed general incorporation laws 
under which a set of persons could begin business by fulfill- 
ing a few requirements. These general laws have been made 
more stringent as the corporations became more powerful 
and have sold their productions in wider territories ; but 
government control has not kept pace with industrial expan- 
sion, partly because incorporation in one state entitled the 
company to do business in all others, and in consequence 
the states with lenient laws have drawn to themselves an 



Commerce and Industry 507 

undue share of the corporation fees and papers, even when 
the main business of the corporations was conducted in 
other states. The influence of this and other practices was 
favorable to the development of industry without govern- 
ment restraint. 

616. Corporation Control of the Present. — When a cor- industrial 
poration is organized, it is obliged to file incorporation papers corporations, 
with the secretary of state, and to pay a regular fee for the Ford, W. C, 
privileges conferred upon it by law. But very few of the states ^^J'j^an- 
have provided any means for determining whether the capi- ual, 67-82. 
tal stock is paid up or is largely fictitious, or have suitable 
regulations which prevent the company from " watering " its 

stock, i.e. declaring the amount increased without putting 

in any more capital. Most of them, however, require annual 

reports concerning the amount of business performed, the 

debt of the company, and other details ; but unless there 

is a uniform system of keeping corporation accounts and 

proper means for enforcing laws framed to prevent fraud 

and protect the interests of the stockholders, the reports 

are of little or no value. 

Regulations for particular kinds of corporations are usually Miscella- 

more rigid and better administered. Banks and loan asso- '^^^"^ corpo- 

. . rations, 

ciations are ordinarily subjected to exactmg laws concemmg 

capital, methods of making loans, and reserve funds ; while jyf^^gf 

insurance companies are even more strictly supervised by Legislation, 

state boards or superintendents. Industrial incorporations 417-419- 

are obliged to comply with many factory laws, especially 

concerned with the safety and comfort of the employees. 

617. Evolution of the Trust. — Within recent years there Formation 

has been a marked tendency to concentrate the capital en- oftrusts. 

,.., . r • rr-i^i./- Original and 

gaged m mdustry m a few great companies. 1 he first lorm present 

was something hke this : a number of corporations, produc- forms. 

ing goods of the same kind, placed the management of their Hadiey, 

affairs in the hands of a few persons, called trustees, who ■^;'^';'"^/- 

Mo., LAAIA 

looked after their united business. They were often thus (1897), 377- 
enabled to control a large part of the market, and by this 385- 
combination to produce their wares more cheaply. As the 



508 



The American Federal State 



Views 
regarding 
best method 
of control. 

Hadley, At. 
^/£7.,LXXIX. 

333-385- 



courts decided that these combinations were illegal, the 
same end was later attained in a different way. The "trust" 
of the present retains the old name, but is in reality a huge 
corporation which has absorbed the smaller ones. It may 
be that the new corporation is composed only of those 
which produced exactly the same class of articles before, 
and thus removes a large share of the competition in that 
line of production, or it may do more than this. It may, 
for example, not only unite the most important of the pre- 
viously existing steel works, but also gain possession of iron 
and coal mines, and of the means of transporting these 
materials to its various plants. The immense saving in the 
cost of production which can be made by permitting each 
plant to turn out that form of steel manufacture which it can 
do to the best advantage, would by itself insure very great 
profits at the former prices ; but the removal of practically 
all competition often gives the combination opportunity to 
charge more than before if they believe that they can make 
more money by doing so. 

618. Control of Trusts. — To protect the people from the 
very great power of these trusts has been one of the most 
prominent duties of recent state governments. The methods 
used have been as various as the views regarding the trusts 
themselves. One class of persons looks upon the trust as 
a monster, which could not have been developed without the 
help afforded industry by the national and state govern- 
ments. They seek to destroy it by adverse legislation. A 
second class believes that the trust is a necessary evil, that 
its formation was inevitable, but that it should be restricted 
and regulated by every possible means. The more con- 
servative members of this class have faith in the efficacy of 
legislation to keep the trust within bounds ; the more liberal 
ones distrust government interference, and look to full and 
complete publicity as furnishing the best solution of the 
trust problem. Still a third class thinks that the trust is a 
public benefit because it abolishes the wastes of competition. 
As they are. confident that the trusts will be forced for their 



Commerce afid Industry 5^9 

own gain to lower rather than raise prices, they oppose all 
legislative restriction even if they do not desire government 
aid. 

About thirty states have passed laws prohibiting monopo- Anti-trust 

lies, and making restraint upon production and trade illegal. '^^^• 

Some of these, particularly in the West and Southwest, have Hadiey, in 

gone so far that their radical laws if enforced must be injuri- xxvi^^^' 

ous to general business, because ordinary combinations would (1899), 604- 
no longer exist. As Dr. Whitten says ( Trend of Legisla- ^°' 

Hon in the United States, p. 417) : " The trouble seems to be Walker, A. 

, , . , , ., . , .„ , F.,in Forum, 

that any law drastic enough to prohibit the trust will at the xxviCiSgg), 
same time prohibit many forms of combination and organi- 257-267. 
zation recognized as highly beneficial. Thus far the labor 
organizations have been the principal sufferers from the 
legislation intended solely to destroy trusts." 

619. History of Labor Legislation. — Nothing points out General 
more clearly the direction in which humanity has progressed ^^"^'^"'^y- 
during the last century or two than the changed attitude of Wright, 
government toward the employer and employee. It is a ^J^iJ^lg,, 
long way from the regulation of wages by English or colonial 264-272. 
statute to the attempted suppression so common now of 
employers' combinations that aim to limit production and 
fix the prices of those products ; but for labor it has been a 
succession of upward steps, taken with increasing rapidity 
as government has become more of the people and for the 
benefit of its largest class. 

The restrictions upon labor in former times, however, were Specific 
comparatively few, and due more to custom than to law. \l^^^^^ 
Those that had not been abohshed before the Revolutionary 
War disappeared during the period following it; and, as ^X^^^iP-r- 
trade and industry came to involve more extensive opera- lationtoLaw, 
tions, the law was invoked not only to protect the employee, 
but so far as might be to improve his condition. Freedom Cleveland, 

, , . , r 1 • 1 1- Democracy, 

of contract was guaranteed, the right of mechanics' liens was 352-375. 
recognized, and a beginning was made in shortening the 
hours of labor for those in the employ of the national and 
state governments. Later, laws were passed declaring how 



510 



The American Federal State 



General. 

Stimson, 
ibid,, 16-39. 



Hours of 
labor. 

Stimson, 
Handbook of 
Labor Law, 
43-65- 



Factory 
legislation. 

Wright, 
Industrial 
Evolution, 
277, 278. 

Stimson, 

Handbook, 

146-153- 

Liability of 
employers. 

Wright, 
278-282. 

Stimson, 

Handbook, 

161-166. 



many hours constituted a legal day, the number having been 
shortened by subsequent amendments. 

620. Protection of the Employee by the Law of To-day. — 
The law of to-day aims to give the employee every reason- 
able advantage, because he is less able than the employer to 
protect himself. The most common deal with the hours of 
labor, mechanics' liens, factory regulations, and employers' 
liabiUty for injury received. 

Many of the states hmit the number of hours required for 
a day's labor on public work to eight or ten, and assert that 
the same number shall be a legal day's work for private par- 
ties ; but by contract any employee may agree to work any 
number of hours he chooses. In the case of minors and of 
women, however, the laws are more strict, most states pre- 
scribing a minimum age limit — usually from ten to fourteen 
— at which children shall be employed in factories, and fixing 
the maximum hour Hmit per week for which women and 
children may be employed. 

Very few of the commonwealths where manufacturing is 
prominent have failed to demand that every company shall 
do certain things in order to protect the health and safety of 
those in his employ. Overcrowding is prohibited, fire-escapes 
are required, and boiler inspection made obligatory. For 
those cities where sweat-shops are common, statutes seek to 
prohibit them entirely or reduce their disadvantages as far as 
possible. 

While we have not done as much as some of the States of 
Europe in holding employers responsible for accidents to 
those in their charge, the law ordinarily requires that every 
precaution must be taken to prevent accidents to employees 
whose work entails risk to life or limb. This is especially 
true of railways ; but, as a rule, the provisions for compen- 
sation of persons injured in the performance of their duties 
are very imperfect ; and frequently, as in the case of the rail- 
way coupling-pin, corporations have refused or neglected 
to adopt hfe-saving devices on account of the expense 
entailed. 



Commerce and Indtistry 



511 



About three-fourths of the states now have labor bureaus 
or special officials who gather statistics and information re- 
garding the condition of labor. These have rendered valuable 
service in calling attention to abuses and in securing ameliora- 
tive legislation. 

621. Attitude of Government toward Labor Disputes. — 
What is the attitude of the government toward labor unions, 
strikes, and settlement of disputes ? Labor unions are given 
the privileges of incorporation, and are allowed to govern 
their members by such methods as they see fit to use. But 
if combinations of labor seek to dictate to employers, or to 
prevent non-union men from working, or conspire against any 
person or set of persons, their acts are held to be illegal, and 
the parties committing them are responsible to the courts. 
Strikes are therefore perfectly legal when they are attended 
by no feeling of malice or by violence ; but a sympathetic 
strike — i.e. one made by a union which has no grievance of 
its own, but which wishes to aid an allied labor organization — 
is held to be in violation of law. 

Compulsory arbitration of difficulties between employers 
and employees is not used in the United States, but there 
are many state boards which have often been able to prevent 
strikes and to adjust differences. 

When a strike is of the nature of a conspiracy for the re- 
straint of trade, the government is always prompt to interfere. 
If interstate trade or the conveyance of the mails is threat- 
ened, the President never hesitates to use military force, as 
was noticeable in the great railway strikes of 1877 and 1894. 
Local disorder is usually suppressed by the sheriffs of the 
counties, with or without the aid of the state governor. The 
equity courts may also take part in restoring peace by issu- 
ing injunctions against the leaders of the conspiracy, who 
are thus apprehended and held for trial ; but this remedy 
is usually thought to be worse than the disease, because the 
power of enjoining strikers is of necessity arbitrary in its 
nature, and therefore liable to abuse. 



State labor 
bureaus. 

Wright, 
273-276. 



Strikes. 

Wright, 
2S3-287. 

Stimson, 

Handbook, 

194-220. 



Compulsory 
arbitration. 

Wright, 
287-292. 

Conspiracies 
and injunc- 
tions. 

Stimson, 
Labor in 
Relation to 
Law, 78-93, 
118-128. 



512 The American Federal State 

QUESTIONS AND REFERENCES 
The Tariff (§§ 605-610) 

1. On general principles, is it wiser to decrease or increase the rate 
of protective duties after the protected industry passes the " infant " 
stage? Situated as we are, would it be advisable to remove the duty 
altogether? 

2. Is there any essential difference in the operation of the protective 
tariff and the tariff for revenue only as indirect taxes? Which one makes 
the poor pay the larger portion of the tax? Explain why this is so. 

3. In your opinion, which has been our most successful tariff, and 
for what reason? 

i. What was the amount of our foreign commerce last year ? Were 
the imports or exports larger? What percentage of the imports was 
admitted free? Of the articles admitted free, which represented the 
greatest value ? Of those paying duty, what ones were assessed at the 
highest rate, and what was the rate? 

Control of Domestic Commerce (§§ 611-614) 

a. On European methods of dealing with the railway problem, look 
up Hadley, Railroad Transportation, 146-258, and Hendrick, Railway 
Control by Comtnissions, 8-91. 

1. Compare the method of control in England with that of the United 
States. In what respect have the English railways more freedom in 
forming combinations than those in the United States? What has 
been their experience in fixing rates? 

2. How does our federal system of government complicate the rail- 
way problem? Will cooperation between the state and national com- 
missions be necessary for the best results? How may that be brought 
about ? 

3. Should our commissions be given more or less power? If it is 
inadvisable to both prevent pools and prohibit discrimination, which 
would it be best to attempt and which leave alone ? 

i. Who are the members of the Interstate Commerce Commission at 
present? If you have a state commission, learn how many compose 
it, how they are chosen, and for what term. 

ii. Does your commission belong to the ones with or without power? 
If with power, how much does it legally possess? What has been its 
success in remedying the evils of railway mismanagement? Of exorbi- 
tant rates? 



Commerce and Industry 5^3 



Regulation of Industry (§§ 615-618) 

a. Different views of the best method of controlling trusts are given 
by J. W. Jenks, in Quar. Jol. Econ., XII (1898), 461 et seq. ; J. D. 
Sayers, in N. A, R., 169 (1899), 210 et seq. ; R. Kleberg, in Arena, XXII 
(1899), 191 et seq.; J. D. Forrest, in Amer. j:>l. Soc, V (1899), 228 

et seq. 

1. Should there not be some national regulation of corporations 
doing business in more than one state? What methods have been sug- 
gested for control of these corporations? (Jenks, 7>«5/j, Appendix.) 

2. Is it advisable to have very little or a great deal of restraint upon 
industry? What might be stated as the minimum requirements regard- 
ing capital stock, liability of directors, reports, etc. ? 

3. Why do not trusts raise the price of their goods indefinitely if 
they have practically no competition? 

i. Look up your general corporation law, the laws regarding banks, 
railways, insurance companies. What means of regulation are pre- 
scribed? If you have an anti-trust law, notice the definition of a trust 
and the method of control. 



Labor Legislation (§§ 619-621) 

1. Trace the history of legislation in favor of labor during this cen- 
tury. Can it be said that the changes are directly due to democracy? 

2. Are any of the labor laws of to-day a menace to the liberty of the 
employer? If so, which ones and for what reason are they dangerous 
to him? 

3. What is meant by arbitration ? For what beside labor disputes 
has it been used? Why should it be voluntary and not compulsory? 

i. Have you a labor bureau? If so, what are its duties? What has 
it accomplished? 

ii. State briefly the law of your state regarding hours of labor, 
mechanics' liens, protection of health of employees, and strikes. 



21. 



CHAPTER XXVIII 

FOREIGN AFFAIRS AND COLONIES 
General References 

On foreign affairs : — 

Davis, Treaties of the United States, in Lalor III, 944-949. 

Curtis, The United States and Foreign Powers. Describes diplomatic 

and consular systems, and gives history of foreign relations under 

the different nations. 
Schuyler, American Diplomacy, " and the furtherance of commerce." 

Gives also a discussion of our diplomatic and consular service. 
Snow, American Diplomacy, " treaties and topics." 
Latane, Diplomatic Relations of the United States and Spanish America, 

Essays of exceptional value. 
Henderson, American Diplomatic Questions. 
Foster, A Century of American Diplomacy (1776-1876). A scholarly, 

continuous narrative in a popular style. 
Treaties and Conventions between the United States and Other Powers 

( 1 776-1 889). A government publication giving text of all treaties 

made between those dates. 
Compilation of Treaties in Force (1899). 

On colonies : — 

Hart, A. B., Brother Jonathan's Colonies; in Harper's, XCVIII (1899), 

319-328 (historical). 
Boyd, Our Government of newly Acquired Territory, in At. Mo. 

LXXXII (1898), 735-742 (historical). 
Becker, C, Law and Practice of the United States in Acquiring, and 

Government of Dependent Territory, in P. S. Q., XVI (1900), 

404-420. 
Bryce, British Experience in the Government of Colonies, in Century, 

LVII (1898), 718-728. Comparison with American conditions. 
Bryce, Some Thoughts on the Policy of the United States, in Harper'' s, 

XCVII (1898), 609 <r/j^^. 
Ireland, Tropical Colonization. 

SH 



Foreign Affairs and Colonies 515 

Kidd, The Control of the Tropics. 

Lowell, A. L., Colonial Civil Service. The requirements in other coun- 
tries. 
Periodical indexes under Colonies, Annexation, Territories, etc. 

622. Increased Importance of Foreign Affairs. — On only Pastisola- 

a few occasions, three of which we have considered (§§ 156, *'°"' 

169, 226), have any events connected with foreign affairs Probable 

acted as important influences upon the development of ^^jcations"' 

nationality and democracy in America, but a few of our 

... , , , . , . . , Olney, R., 

diplomatic victories would deserve consideration m them- in ^^ ^g^^ 
selves were they unconnected in any way with our internal Lxxxi 
growth. In the past our relations with Great Britain have ^gg^ ^^^" 
been of especial significance, so that our negotiations with 
that country occupy a very prominent place in our diplo- 
matic history. Our relations with our Southern neighbors 
have likewise been of interest, particularly in connection with 
that policy familiarly known as the Monroe Doctrine. In 
the future, foreign affairs must become a much more real 
part of us than they have been, not alone because the in- 
crease of our commerce and improved means of communica- 
tion have brought us into touch with other world powers, 
but on account of the newly acquired possessions for whose 
sake we are necessarily interested in all the problems of the 
Pacific and the Far East. 

623. The Treaty of 1783. — Our national career opened American 
with what may well be considered our greatest diplomatic g^ ^^ggg 
victory, gained in the negotiations with Great Britain in 

1782 and 1783. After Cornwallis's surrender at Yorktown {j 163, 164. 

had practically closed the Revolutionary War, Great Britain 

felt it necessary to make peace with the four nations — the 

United States, France, Spain, and Holland — with whom she 

was at war. She found the American commissioners (of 

whom Franklin, Jay, and John Adams took active part in the 

negotiations) had been instructed to ask for the Mississippi 

River as a western boundary, with the St. Lawrence and the 

great lakes on the north, and to demand the right to take 

fish off Newfoundland. These claims were deemed extrav- 



5i6 



The American Federal State 



Prevention 
of European 
aid to Con- 
federacy. 

Foster, 
Century of 
Amer. Di- 
plomacy, 357- 
400. 



agant by England, while two of the three, those referring 
to the western boundary and the fisheries, were opposed 
by the French Ministry, whose advice Congress had told her 
representatives to follow. As our commissioners were by no 
means ready to sacrifice American interests to French am- 
bition, even at the request of Congress, without consulting 
our French allies, they devoted themselves to securing from 
England recognition of the justice of our claims. In a 
preliminary treaty of peace signed in 1782 they obtained 
almost everything for which they had asked, giving very little 
in return. This preliminary treaty was later accepted by 
England as the final treaty of peace, and we were thus given 
a perfect title to a broad domain, to which through equal 
good fortune other territories were later added, until it 
reached from sea to sea, the most magnificent empire in the 
world. 

624. The Diplomacy of the Civil "War. — During the great 
conflict between the North and the South, from 1 861 to 1865, 
it was of the utmost importance to the Union that cordial 
relations be continued with Europe, and that the powers be 
prevented, if possible, from recognizing the independence 
of the South. We were fortunate in having at that crisis 
such men as Seward for Secretary of State and Charles Fran- 
cis Adams as Minister to England. At the very beginning 
of the war a rupture was almost caused by the action of 
Captain Wilkes of the San Jacinto in stopping the British 
mail steamer Trent in order to seize two Confederate com- 
missioners on their way to Europe. They were almost 
immediately given up on request, with a polite but sarcastic 
statement that we rejoiced to see that England now disap- 
proved the right of search and accepted the principle for 
which we had so long contended. Later our representatives 
were kept busy preventing, so far as lay in their power, the 
equipment of Confederate privateers in English and French 
ship-yards, and in counteracting the influences that were 
constantly brought to bear in favor of recognizing Southern 
independence. The great victories of Vicksburg and Get- 



Foreign Affairs and Colonies 517 

tysburg (1863), coupled with the stout adherence of the 
Enghsh-working people to the cause of freedom that the 
North represented, lessened these dangers, though American 
success was due in great part to the services of Adams and 
Dayton at the English and French courts. 

In the treaty of Washington (1871), besides many other Treaty of 
questions that were settled, arrangements were made that the Washington 
amount of the damages due the United States from Great award. 
Britain for injury done to our commerce by the Alabama and 
other vessels fitted out in British yards during the war, should 421-428. 
be fixed by a tribunal of five members — one American, 
one English, and three from other nations — the treaty itself 
laying down regulations which defined the duties of neutrals 
in time of war. The tribunal met at Geneva, Switzerland, 
and placed the award at 1^15, 500,000. The whole proceed- 
ing, including the willingness to frame rules which would be 
to its disadvantage and the readiness to submit such ques- 
tions to arbitration, reflects credit upon the Gladstone Min- 
istry, although the hberality of the English does not detract 
from the laurels of Secretary of State Fish. 

625. Some Early Applications of the Monroe Doctrine. — Original 
The circumstances which led to the now famous declaration Monroe 
of President Monroe upon the relation of the United States 
to European interference with other American countries, were 
briefly set forth in § 169, and need not be repeated; but 
what was intended to be a statement of a temporary pol- 
icy has become a settled doctrine of governmental action, 
applied many times since 1823. 

It was the threatened conquest by Great Britain of the Application 
district around the mouth of the San Juan River in Central '" Central 

■' America. 

America, over half a century ago, that brought out one of 

the first protests under the doctrine. As the subject of an and Foreign 

interoceanic canal was at that time very interesting to both Powers, 95- 

nations, and as the capital for such an enterprise could not ^'' 

be obtained in America, but must be procured in Great 

Britain, the United States was satisfied to make the Clayton- 

Bulwer treaty (1850), which prohibited either country from 



5i8 



The American Federal State 



The French 
in Mexico. 

Foster, ibid,, 
401-403. 

Lothrop's 

Seward, 

387-395- 



Monroe 
Doctrine and 
interoceanic 
canal. 

Curtis, U. S. 
and Foreign 
Powers, 112- 
118. 

Foster, ibid., 
461-466. 



gaining control of the territory about the canal, or getting 
exclusive control of the canal itself. The subsequent atti- 
tude of the United States toward this treaty is too well 
known to require comment. 

The most conspicuous application of the doctrine was in 
connection with the affairs of Mexico in 1866. During the 
Civil War, Napoleon III of France, under pretext of collect- 
ing certain debts, forced upon the Mexicans an Austrian 
prince named Maximilian, who was maintained as Emperor 
of Mexico by the use of the French army. Being fully 
occupied with the prosecution of the war, and anxious to 
avoid difficulty with France, the government at Washington 
felt it unwise to do more than refuse to recognize Maxi- 
miUan's government and mildly protest against Napoleon's 
course. After Appomattox the case was different. An army 
of observation under Sheridan was despatched to the Rio 
Grande, and disapproval of French actions clearly expressed. 
Finally, on December 10, 1865, Secretary Seward sent to 
France a peremptory note, stating that the policy of friend- 
ship for France would " be brought into immediate jeopardy, 
unless France could deem it consistent with her interest and 
honor to desist from the prosecution of armed intervention 
in Mexico to overthrow the domestic republican government 
existing there, and to establish upon its ruins the foreign 
monarchy which has been attempted to be inaugurated in 
the capital of that country." After a little hesitation Napo- 
leon agreed to withdraw his troops ; and, when that was done, 
the Mexican Empire came to an end, Maximilian being put 
to death. 

626. The Monroe Doctrine in Recent History. — There has 
been a pronounced tendency throughout the country during 
the last two or three decades to enlarge upon the original 
Monroe Doctrine. This is observable in the special message 
of President Hayes (1880) at the time De Lesseps planned 
his tide-water canal across the Isthmus of Panama. Then 
and under President Garfield, and more emphatically under 
President McKinley, the administration or the Senate have 



Foreign Affairs and Colonies 519 

come out strongly for a canal built with American capital 
and under exclusive American control. The doctrine has 
also been made the basis for official statements that even 
so remote an island as Hawaii, at that time an independent 
monarchy, could not be permitted to pass into the pos- 
session of any European power. 

Far more noteworthy than these was the new form assumed The Vene- 
by the doctrine at the hands of President Cleveland and ^^^'^^'^ 

•' pute. 

Secretary Olney (1895) in the Venezuela boundary dispute. 
The location of the line between that country and British 466-478. 
Guiana had never been definitely settled, although numerous 
surveys had been made. It seemed to our government that ^,^^ Spanish 
Great Britain was endeavoring to seize upon so much of the America, 
Venezuela territory as might enable it to gain the mouth of *^^~^ ^' 
the great Orinoco River. Secretary Olney therefore called 
the attention of Great Britain to the interests of the United 
States which were involved in the question, and showed how 
the Monroe Doctrine appUed to the case. When Lord Salis- 
bury refused to accept Olney's statement of the controversy 
as being true to the facts, and denied that the doctrine 
applied, President Cleveland sent Congress a message in 
which he not only fully supported Olney's contentions, but 
claimed that the United States should interfere to determine 
where the boundary line really ran. For that purpose he 
suggested a commission to be selected by the President. 
The commission was duly appointed, but before it was ready 
to report, Great Britain agreed to leave the whole matter to 
an impartial board of arbitration. 

Quite a number of our eminent publicists and statesmen Objections 
believed that this was a new and dangerous interpretation l^tg^p^gta. 
of the Monroe Doctrine ; but it has been quite generally tions of 
approved as in line with the original idea of protecting 
interests of the United States. 

Burgess, J, 

627. The Protection of Neutral Rights. — The influence ^^^rfsofii 
exerted by the United States in favor of the rights of neutrals is worthy 
of brief consideration. As early as 1785 our treaty with Prussia had 
contained clauses declaring that in case one of the two countries was 



Monroe 
Doctrine. 



C>., XI (1896), 
201-221. 



520 



The American Federal State 



Efforts made 
in early 
history. 

Schuyler, 
Amer. Di- 
plomacy, 
367-380. 



Influence of 
our neutrality 
iaws. 

Foster, 
154-157. 
Attempt to 
have private 
war at sea 
abolished. 

Schuyler, 
ibid., 380- 
398. 



Declaration 
of Paris. 



Two classes 
of colonies. 

Boyd, in 
At. Mo., 
LXXXII 

(1898), 735- 
74a. 



at war, the vessels of the other might trade with the belligerent as in 
time of peace, free ships making free goods; i.e. if France and Prussia 
were at war, French goods in an American ship could not be captured 
by Prussia, though contraband of war might be detained. These pro- 
visions were more liberal than those even now recognized by inter- 
national law, and vastly in advance of the practice at that time which 
permitted one belligerent to seize property of the other anywhere on 
the seas. 

The Proclamation of Neutrality issued by Washington (1793), with 
the laws of 1794 and 1818 defining the duties of neutrals, furnished not 
alone an example of firm and moderate action under trying circum- 
stances, but a model copied by older nations wishing to declare their 
neutrality. 

Beginning with 1823 the United States made an earnest attempt to 
gain the consent of Europe to the abolition of privateering; but each 
power refused to act unless all of the others were willing, which they 
were not. When the question became again prominent at the time of 
the Crimean War, and France and England showed a disposition to 
disapprove of privateering, as well as to recognize the rights of Russia's 
goods on neutral ships, our government took occasion to urge that the 
nations unite in prohibiting all private war at sea. To this they would 
not consent; but, in the declaration of Paris (1856), those that had 
been at war adopted four resolutions which mark the beginning of a 
new epoch in the rights of neutrals. These were afterward accepted 
by many other countries, but not by the United States ; first, because 
they did not go far enough ; and second, because their acceptance by 
the President would not be binding upon Congress. 

The declaration of Paris was as follows : — 

" First, Privateering is and remains abolished, 

" Second, The neutral flag covers enemies' goods, with the exception 
of contraband of war. 

" Third, Neutral goods, except contraband of war, are not liable to 
capture under an enemy's flag, 

" Fourth, Blockades to be binding must be effective, that is to say, 
maintained by a force really sufficient to prevent access to the coast of 
the enemy." 

628. Our Experience with Colonies. — The territory which 
was acquired by the United States, or controlled by Congress 
before 1867, consisted of great areas practically uninhabited, 
and lying directly west of the states in the path of advancing 
migration from the older sections of the country. For dif- 
ferent districts of this vast region it was customary to have 



Foreign Affairs and Colonies 521 

two classes of territorial government (the temporary and the Hart, in 
permanent) adapted to the different stages in their develop- ^^^""'^ 
ment. The government of each district was considered (1899), 319- 
temporary until the population warranted the organization 328. 
of a regular government. Temporary governments were 
principally distinguished from permanent ones by a total 
lack of self-government; for the organized territories were 
always permitted to choose one or both houses of the legis- 
lature, the governor and the judiciary, however, being ap- 
pointed by the President. 

In section 311 we considered the amount of self-gov- Semi- 
ernment permitted in the organized territory of the present colonial 
day, and noted how prominent a place the government at organized 
Washington occupied in the control of such a territory, territories. 
That account may be taken as showing how organized terri- 
tories have been governed in the past as well as within re- 
cent times, although there is more local autonomy in the lands 
under national supervision to-day than formerly. But even 
in these organized territories more control is exercised from 
Washington now than was exercised from London over Con- 
necticut and Rhode Island before the Revolutionary War ; 
that is, our territorial system has always involved certain 
semicolonial relations. 

During the period of "temporary" government, more- Colonial 
over, the relation between the territory and the nation was a character of 
colonial one, pure and simple. In the lands ceded by the territories, 
states under the Confederation, the districts were at first 
under the charge of a governor and judges selected by the 
President. The temporary government of the Louisiana 
purchase was of the nature of a military despotism, while 
from 1805 to 18 1 6 the people in that portion north of the 
33d parallel were allowed less share in the election of pubhc 
officials than those of Massachusetts in colonial times. For Alaska. 
Alaska there has never been any attempt to estabhsh a regu- t^^^^^ £, § 
lar government, not even a governor being appointed until Imperial 
1884. This official has no regular corps of assistants, and •^''"^^^"O'. 
although there have been judges for some time, there is even 



522 



The Atnerican Federal State 



Conditions 
affecting the 
character 
of new colo- 
nial govern- 
nnents. 



Some phases 
of the task of 
supervision. 



yet no legislature, the laws of Oregon applying where needed, 
and when they do not conflict with national law. 

629. Problems in organizing Colonial Governments. — 
The policy pursued toward the territories acquired in 1898 
will doubtless be different from that we have used in regard 
to the land lying between the Mississippi and the Pacific, 
because the population of these new possessions is compara- 
tively dense, and is entirely lacking in the political training 
of Enghsh-speaking peoples. It has been necessary, how- 
ever, as in the case of our earlier acquisitions, to arrange 
temporary governments for which our regular territorial 
system did not furnish any suitable models. The commis- 
sion of five members who were given sole control of 
civil affairs in the Philippines will undoubtedly be displaced 
by an entirely different type of colonial government ; but the 
permanent governments to be established in Hawaii and 
Porto Rico will probably be similar in some respects to the 
temporary governments created for those districts. Among 
the questions which must be definitely settled in arranging 
a permanent organization for these colonies is, first of all, 
the one whether the organization shall be a means of pre- 
paring the colony or territory for statehood, or whether it is 
the intention to preserve indefinitely a colonial relation 
between the United States and the district. In either case 
the restrictions to be placed upon the suffrage and the part 
taken by these voters in local government, and in the elec- 
tion of some or all of the members of the colonial legisla- 
ture, will furnish abundant material for constructive states- 
manship. Considering the different conditions existing in 
these new island possessions, it is extremely improbable that 
it will be considered wise to allow the same degree of local 
autonomy in the Philippines as in Porto Rico, while the 
suffrage will no doubt be much more liberal in the latter 
than in the former. 

630. Problems of Colonial Control. — ^The degree of the con- 
trol exercised by Congress over the colonies must depend to 
some extent on the decisions of the Supreme Court regard- 



Foreign Affairs and Colonies 523 

ing the limitations which the Constitution places upon the 
national legislature in its dealings with the colonies. How- 
ever, the principal difficulties to be overcome in creating 
such a government as will best protect the interests of the 
nation and the subject peoples, in establishing a system of 
internal taxation that will prove most profitable and least 
burdensome, and in properly administering such a body of 
law as each colony may need, are not constitutional but 
practical. Emphasis has rightly been placed upon the need 
of having some national bureau which shall take sole charge 
of colonial affairs, and of securing an honest and competent 
civil service, in order that the plans for governing the colo- 
nies may not fail through faulty administration, but be made 
the more efficient ; yet these are only two of the necessities 
of the situation, for success cannot be obtained through good 
service under suitable supervision if the method of dealing 
with social, poHtical, and fiscal problems is wrong. We 
shall need all of the help that can be obtained from our 
own experience, and the more extended experiments of 
European nations, but will, of course, be compelled to 
work out the problems of control according to the condi- 
tions of the future. 

QUESTIONS AND REFERENCES 
Some Chapters of American Diplomacy (§§ 622-627) 

a. The treaty of 1783 is considered in Fiske, Critical Period, 1-49; 
Foster, Century of Amer. Diplomacy, 40-72; Pellew, Life of John fay, 
114-228; Jay, J., in Winsor's Narr. and Crit. Hist, of Amer., VII, 
89-114; Bigelow's Franklin, Pt. Ill, chaps. III-V. 

b. On the diplomacy of the Civil War see J. Schouler in N. A. R., 
CII, 446 et seq. ; Aldis, in N. A. J?., CXXIX, 342 et seq. ; Woolsey, 
in N. A. J?., CXI, 257 et seq.; Adams, Charles Francis Adams; 
Lathrop, W. H. Seward, 292-387 ; Davis, Fish and the Alabama 
Claims. 

c. On the French occupation of Mexico consult Latane, United 
States and Spanish America, chap. V ; F. Bancroft in F. S. Q., XI 
(1896), 30-43; Stevenson, IVitfi Maximilian in Mexico. 



524 The American Federal State 

1. What conditions especially affected American diplomatic success 
in 1783? Would it have been better had the American commissioners 
sacrificed some of their claims and made a commercial treaty? Give 
the history of our struggle for commercial rights and privileges. 

2. Why does the Monroe Doctrine represent a wise national policy? 
What are the dangers from a too extensive application of it? What is 
its status at present (Latane, pp. 266-273, 284-289) ? 

3. What have been our greatest diplomatic mistakes ? Our greatest 
successes? What is the prospect that "to conduct foreign affairs with 
skill we must sacrifice to some extent the democratic idea of govern- 
ment by the people and the federal idea of division of power" (§ 254)? 



The Government of Colonies (§§ 628-630) 

a. On colonial government and problems, compare Becker, C, in 
P. S. e.,XVI (1900), 404-420; Burgess, J. W., in P. S. G» XV (1900), 
381-398; Bryce, J., in Harper's, XCVII (1898), 609 et seq. ; Worces- 
ter, D. C, in Century, LVI (1898), 873-879. 

1. Is there any likelihood that any of our newer possessions may be 
admitted to the Union as states? Give objection to keeping Hawaii 
permanently in a colonial relation; to making it a state. 

2. What grades of colonial government has Great Britain? How 
are her colonial officials trained? Tell something about the organiza- 
tion of the British colonial office. 

3. Will we take more or less part in the affairs of the East than we 
have? Should it be our policy to acquire other possessions bordering 
on the Pacific ? What will be the probable effect of permanent colo- 
nialism upon our national government? upon the future of democracy? 

i. Describe the present government of Arizona; of Hawaii; of the 
Philippines. Give the suffrage requirements of each. Who is at the 
head of each government? What rights of local self-government are 
accorded to each ? 



CHAPTER XXIX 

THE DUTIES OF CITIZENSHIP 

631. The Twin Virtues of Citizenship. — ^Through the Story from 
writings of Plutarch there has come down to us the story of P^'^^^rch. 
an old man who, desiring to witness the Olympian games, 

was searching for a seat among the crowd of spectators which 

amused itself by making fun of him. He came finally to a 

body of Spartans, most of whom rose at once and requested 

him to be seated. Thereupon the assembly applauded, and 

the old man was led to exclaim, " Alas ! all the Greeks know 

what is right, but only the Lacedaemonians practise it." 

The words that were spoken of the Lacedaemonians can Knowledge 

fitly be applied to all who possess the twin virtues of citizen- ^"'^ action 
•^ '^ '■ ^ twin CIVIC 

ship — knowledge and action — for the two are inseparable if virtues. 

they are to become useful in the possession of any citizen. 
It is not enough that we should be fully informed regarding 
the structure and operation of our political system and be 
able to talk learnedly of the great events in our constitu- 
tional history ; we must be prepared to give our time and 
our talents to whatever civic tasks our country may call us, 
even when they involve a drudgery that may be distasteful. 

632. The Knowledge that makes for Good Citizenship. — By An intelligent 

knowledge is meant more than an abundance of information ^p™?*'^^^'^- 
° sion of our 

relating to isolated historical events or single departments of political 
government ; it refers rather to an intelligent comprehension ^y*^®"* *"d 
of the course of development during our previous history ; conditions, 
together with a reasonably full knowledge of the real char- 
acter of our federal union, of the organization and powers of 
the national, state, and local governments ; supplemented by 
a fairly definite appreciation of the conditions that exist 

525 



526 The American Federal State 

around us, of the problems that confront us, and of our own 
duty and limitations under the circumstances — aU of these 
fitted into a unified and organized whole in which the rela- 
tion of each part to every other is recognized and under- 
stood. Such an ideal can of course be realized in the lives 
of very few men who have had extended opportunities for 
study and observation, but it should be the goal toward which 
we are all striving. It is much deeper than any knowledge 
that can be obtained from books, valuable as that may be in 
presenting a few fundamental truths ; for, unless it gives a 
real insight into the character of men and the motives which 
prompt them, it will be knowledge without comprehension — 
learning without wisdom. 
Insepara- 633. Knowledge and Action as Twin Virtues. — Knowl- 

two ^ ° ^^S^ ^y itself is static, to become a true virtue of citizenship 

it must be joined to its twin, action, and be made dynamic. 
Otherwise the scathing though veiled condemnation which 
the old Greek applied to his fellow-countrymen may with 
equal truth be used of us. Instead of an extensive knowl- 
edge being a sufficient excuse for not participating in the 
duties of citizenship on the ground that it is a substitute for 
civic activity, it, on the contrary, creates an obligation 
which we cannot escape. Like a mediaeval knight, the 
modern American citizen must remain faithful to the motto, 
*^ noblesse oblige" though now it is a nobility of manhood 
and not one of birth which compels us to rise to the best 
that is in us. We hear it said sometimes that the best citi- 
zens take least part in poHtics, but the expression is a con- 
tradiction of terms. The very idea of citizenship is one of 
reciprocal obligation between the State and its members, and 
no social position or business standing can entitle any man 
to be called even a good citizen who neglects his civic duties. 
But let us not err in the other direction, and imagine that 
the best citizen is the one who is most prominent in the noise 
and fiirore of political campaigns. He is not likely to come 
nearest our ideal of citizenship whose sole claim to this dis- 
tinction is his conspicuous efforts every four years to " save 



The Duties of Citizenship 527 

the country." True action, as we may well learn from 
Mother Nature, is more often than not silent in its workings. 
Bluster and indolence alike have no place in it. It is earn- 
est without being demonstrative, continuous and not spas- 
modic. Each man who according to his opportunity, not 
unmindful of the lesser and more common duties, works for 
the good of his country in the way for which his tastes and 
capacity fit him, has earned the title of a loyal citizen. 

As knowledge without action is vanity, so is action with- Useiessness 
out knowledge folly. The old though cruel proverb about °*jf^o|j°" 
good intentions expresses a truth that should not be over- knowledge. 
looked even by those well-meaning persons who carry out 
their intentions, but in ignorance. Enthusiasm is a powerful 
social force when rightly used ; but, if coupled with bigotry, 
or narrowness, or selfishness, may yet, as has so often been 
the case, menace both liberty and order, and produce 
results that are dangerous to the greatest good of the State 
and society. 

634. Analogies from Experience. — Our country is con- Value and 

stantly called upon to solve problems that are in many re- '^ifations 

^ ^ "^ of historical 

spects similar to those of the past, but which involve new analogy. 

elements, and which arise under new conditions. If we 
notice carefully the most successful solutions reached by our 
ancestors, as in the framing of the national Constitution, we 
can scarcely fail to be impressed with the ways in which they 
utilized those political experiences which had stood the test 
of time, not copying slavishly after earlier statesmen, and yet 
not breaking with the past except in adapting their work to 
needs which formerly had no existence. Our own duty in 
regard to questions of to-day requires that we be pre- 
pared to do as they did ; to break fearlessly from tradition 
when the occasion demands ; and yet continue unbrokenly 
the development which has marked previous decades, coun- 
teracting so far as we can its evil tendencies, and infusing 
into its latent possibiUties for good a new fife and spirit. 
The principles of political growth are the same now as then, 
and would be found but few in number could we but see 



528 



The American Federal State 



The average 
citizen and 
civic prob- 
lems. 



Political ills 
are growing 
less numer- 
ous. 



more clearly. For that reason the changes of the present 
are very much like those of previous times, but only in a 
general way, and never in particulars does history repeat it- 
self. Historical analogy has therefore the highest value if 
used with great care, though it never furnishes models for 
indolent workmen. 

To most of us the civic duties relating to policies and 
problems of the future do not require that we propose solu- 
tions, but merely that we approve or disapprove those which 
abler minds consider suitable. It is not only at the polls 
that the feelings of the nation may make themselves felt, but 
in the potent though silent influence of public sentiment ; 
for in the long run the policies of a government like ours are 
moulded by the real desire or by the indifference of the 
average citizen. 

635. The Injustice of Pessimism. — We shall be unable to 
make the most of the opportunities that come to us if we 
assume the duties of citizenship in a spirit of pessimism. 
From the standpoint of citizenship, pessimism is wrong not 
only because it deadens activity, but because it is ground- 
less. There are, to be sure, many virtues which were promi- 
nent a century or two ago that are uncommon to-day. 
Times have indeed changed, yet not for the worse. Those 
halcyon days in the heroic period of American history which 
drew to the front so many men of superior ability, do not on 
close examination compare very favorably with those in our 
own memory. Were the political and constitutional ques- 
tions now relatively as important as those that commanded 
the attention of Washington, Hamilton, Jefferson, and Mar- 
shall, there is little doubt that men of genius would be 
attracted to pohtics rather than to some more promising 
line of employment. But even as it is we cannot find in the 
last twenty years of the nineteenth century, scenes more dis- 
graceful than history records in the last two decades of the 
eighteenth. The former are flaunted in our faces, the latter 
almost buried in oblivion ; yet even the deadening effect of 
Time cannot erase them. What was the strife between Blaine 



The Duties of Citizenship 529 

and Conkling to the Hamilton -Adams feud, from which the 
Federalist party never recovered ? Where can we find party 
enmity so bitter as in the administration of Washington, the 
most maligned of Presidents ? Where shall be encountered 
stronger prejudices, more local selfishness, than during the 
Revolution and under the Confederation, or a more intense 
spirit of hatred than that shown the Tories after inde- 
pendence was estabhshed ? But why multiply illustrations ? 
Enough has been said to show that even in the days of 
simple life, when political ills should have been less numerous 
and less noticeable, there were faults with the virtues. While 
we have more than enough of our own, it can be said with- 
out fear of contradiction that the general standards of public 
life and morality are higher than they were then, and will be 
higher in a hundred years than they are at present. The 
civic conscience is far from being fiilly awakened, but is 
more active than it was a few decades ago. The decalogue 
and the golden rule have all too small a place in public life ; 
but there is no less honesty and integrity among public 
servants than in the days of our fathers ; while among the 
common people there is more intelligence, less prejudice, 
deeper sympathy for the oppressed, in short, a truer adhe- 
rence to the principles of justice and righteousness proclaimed 
by the great Teacher. As Professor Moses so forcefully 
expresses it, " Humanity is marching steadily uphill." 

636. Patriotism. — What is patriotism? What does it The nature 
include ? It may be defined as devotion to the best inter- of Patriotism, 
ests of one's country. It is a thing of peace as well as war. 
Whatever the nation needs that we may do, patriotism 
demands. Subordination of personal wishes to the general 
welfare is necessarily one of its requirements, for the good of 
all is before that of any individual. However, it should 
never be conceived in a spirit of narrow national pride. We 
may not proclaim with F^nelon that we are citizens of the 
whole world, but we should remember that true patriotism 
will not in its zeal overlook the rights of humanity beyond 
our own borders. Not a great while ago allegiance to a 
2 M 



530 The American Federal State 

state was held to be above that to the nation by many of 
those who helped to found this republic. History has since 
decided that loyalty to a state must yield to national loyalty ; 
and, although History is not hkely to decide soon that loyalty 
to a nation is below that to a great World State, nevertheless 
there is danger that we may fail to do what is best for our 
own beloved land, because in our enthusiasm we make the 
mistake of thinking that our country, whether right or wrong, 
must be unswervingly upheld, when no national honor but 
the rights of others are involved. On the other hand, care 
should be taken not to minimize the value of constant and 
earnest allegiance to the United States and all that our 
flag represents. The pathetic tale of Edward Everett Hale, 
entitled "The Man without a Country," teaches a lesson that 
should come home to all who lack not so much in patriotism 
as in interest. With hearts full of gratitude, and pride in the 
land that gave us birth, let us take to ourselves that noble 
sentiment in which Abraham Lincoln summoned his fellow- 
citizens to a higher plane of civic duty in the crisis of '65, 
and "with maHce toward none, with firmness in the right, 
as God gives us to see the right, let us strive on to finish the 
work we are in." 



APPENDICES 



APPENDICES 

APPENDIX A 

THE ARTICLES OF CONFEDERATION 

Articles of Confederation and Perpetual Union between the States 
of New Hampshire^ Massachusetts Bay, Rhode Island and 
Providence Plantations, Conttecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
South Carolina and Georgia. 

Article I. — The style of this Confederacy shall be, " The 
United States of America." 

Article II. — Each State retains its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right which is 
not by this Confederation expressly delegated to the United 
States in Congress assembled. 

Article III. — The said States hereby severally enter into a 
firm league of friendship with each other, for their common 
defense, the security of their liberties, and their mutual and 
general welfare, binding themselves to assist each other against 
all force offered to or attacks made upon them, or any of them, 
on account of religion, sovereignty, trade, or any other pretense 
whatever. 

Article IV. — ^ The better to secure and perpetuate mutual 
friendship and intercourse among the people of the diflferent 
States in this Union, the free inhabitants of each of these States, 
paupers, vagabonds, and fugitives from justice excepted, shall be 
entitled to all the privileges and immunities of free citizens in 
the several States ; and the people of each State shall have free 

533 



534 '^^^ Ametican Federal State 

ingress and regress to and from any other State, and shall enjoy 
therein all the privileges of trade and commerce, subject to the 
same duties, impositions and restrictions as the inhabitants 
thereof respectively ; provided that such restrictions shall not 
extend so far as to prevent the removal of property imported 
into any State to any other State of which the owner is an 
inhabitant ; provided also, that no imposition, duties, or restric- 
tion shall be laid by any State on the property of the United 
States or either of them. 2 if any person guilty of, or charged 
with, treason, felony, or other high misdemeanor in any State 
shall flee from justice and be found in any of the United States, 
he shall, upon demand of the governor or executive power of the 
State from which he fled, be delivered up and removed to the 
State having jurisdiction of his offense. ^ Full faith and credit 
shall be given in each of these States to the records, acts, and 
judicial proceedings of the courts and magistrates of every other 
State. 

Article V. — ^ For the more convenient management of the 
general interests of the United States, delegates shall be annually 
appointed in such manner as the Legislature of each State shall 
direct, to meet in Congress on the first Monday in November, in 
every year, with a power reserved to each State to recall its dele- 
gates, or any of them, at any time within the year, and to send 
others in their stead for the remainder of the year. No State 
shall be represented in Congress by less than two, nor by more 
than seven members ; and no person shall be capable of being a 
delegate for more than three years in any term of six years ; * nor 
shall any person, being a delegate, be capable of holding any 
office under the United States for which he, or another for his 
benefit, receives any salary, fees, or emoluments of any kind. 
* Each State shall maintain its own delegates in any meeting of 
the States and while they act as members of the Committee of 
the States. In determining questions in the United States, in 
Congress assembled, each State shall have one vote. Freedom 
of speech and debate in Congress shall not be impeached or 
questioned in any court or place out of Congress ; and the mem- 
bers of Congress shall be protected in their persons from arrests 
and imprisonment during the time of their going to and from, 
and attendance on, Congress, except for treason, felony, or breach 
of the peace. 



Appendix A 535 

Article VI. — ^ No State, without the consent of the United 
States, in Congress assembled, shall send any embassy to, or 
receive any embassy from, or enter into any conference, agree- 
ment, alliance, or treaty with any king, prince, or state ; ^ nor 
shall any person holding any office of profit or trust under the 
United States, or any of them, accept of any present, emolument, 
office, or title of any kind whatever from any king, prince, or 
foreign state ; ^ nor shall the United States, in Congress assem- 
bled, or any of them, grant any title of nobility. 

* No two or more States shall enter into any treaty, confedera- 
tion or alliance whatever between them, without the consent of 
the United States, in Congress assembled, specifying accurately 
the purposes for which the same is to be entered into, and how 
long it shall continue. 

6 No State shall lay any imposts or duties which may interfere 
with any stipulations in treaties entered into by the United 
States, in Congress assembled, with any king, prince, or state, 
in pursuance of any treaties already proposed by Congress to 
the courts of France and Spain. 

® No vessels of war shall be kept up in time of peace by any 
State except such number only as shall be deemed necessary by 
the United States, in Congress assembled, for the defense of 
such State or its trade ; nor shall any body of forces be kept up 
by any State in time of peace, except such number only as in the 
judgment of the United States, in Congress assembled, shall be 
deemed requisite to garrison the forts necessary for the defense 
of such State ; but every State shall always keep up a well-regu- 
lated and disciplined militia, sufficiently armed and accoutered, 
and shall provide and constantly have ready for use in public 
stores a due number of field pieces and tents, and a proper quan- 
tity of arms, ammunition and camp equipage. 

' No State shall engage in any war without the consent of the 
United States, in Congress assembled, unless such State be 
actually invaded by enemies, or shall have received certain 
advice of a resolution being formed by some nation of Indians to 
invade such State, and the danger is so imminent as not to admit 
of a delay, till the United States, in Congress assembled, can be 
consulted ; nor shall any State grant commissions to any ships 
or vessels of war, nor letters of marque or reprisal, except it be 
after a declaration of war by the United States, in Congress 
assembled, and then only against the kingdom or state, and the 



536 The American Federal State 

subjects thereof, against which war has been so declared, and 
under such regulations as shall be established by the United 
States, in Congress assembled, unless such State be infested by 
pirates, in which case vessels of war may be fitted out for that 
occasion, and kept so long as the danger shall continue, or until 
the United States, in Congress assembled, shall determine 
otherwise. 

Article VII. — ^ When land forces are raised by any State for 
the common defense, all officers of or under the rank of Colonel 
shall be appointed by the Legislature of each State respectively 
by whom such forces shall be raised, or in such manner as such 
State shall direct, and all vacancies shall be filled up by the 
State which first made the appointment. 

Article VIII. — All charges of war, and all other expenses 
that shall be incurred for the common defense or general welfare, 
and allowed by the United States, in Congress assembled, shall 
be defrayed out of a common treasury, which shall be supplied 
by the several States in proportion to the value of all land within 
each State, granted to, or surveyed for, any person, as such land 
and the buildings and improvements thereon shall be estimated, 
according to such mode as the United States, in Congress 
assembled, shall, from time to time, direct and appoint. The 
taxes for paying that proportion shall be laid and levied by the 
authority and direction of the Legislature of the several States, 
within the time agreed upon by the United States, in Congress 
assembled. 

Article IX. — ^ The United States, in Congress assembled, 
shall have the sole and exclusive right and power of determining 
on peace and war, except in the cases mentioned in the sixth 
Article ; ^ of sending and receiving ambassadors ; ^ entering into 
treaties and alliances, provided that no treaty of commerce 
shall be made, whereby the legislative power of the respective 
States shall be restrained from imposing such imposts and duties 
on foreigners as their own people are subjected to, or from pro- 
hibiting the exportation or importation of any species of goods 
or commodities whatever ; * of establishing rules for deciding, in 
all cases, what captures on land and water shall be legal, and in 
what manner prizes taken by land or naval forces in the service 



Appendix A 537 

of the United States shall be divided or appropriated ; of grant- 
ing letters of marque and reprisal in times of peace ; appointing 
courts for the trial of piracies and felonies committed on the high 
seas ; ^ and establishing courts for receiving and determining 
finally appeals in all cases of captures ; provided that no member 
of Congress shall be appointed a judge of any of the said courts. 
^ The United States, in Congress assembled, shall also be the last 
resort on appeal in all disputes and differences now subsisting or 
that hereafter may arise between two or more States concerning 
boundary, jurisdiction, or any other cause whatever ; which author- 
ity shall always be exercised in the manner following : Whenever 
the legislative or executive authority, or lawful agent of any 
State in controversy with another, shall present a petition to 
Congress, stating the matter in question, and praying for a hear- 
ing, notice thereof shall be given by order of Congress to the 
legislative or executive authority of the other State in contro- 
versy, and a day assigned for the appearance of the parties by 
their lawful agents, who shall then be directed to appoint, by 
joint consent, commissioners or judges to constitute a court for 
hearing and determining the matter in question ; but if they 
cannot agree, Congress shall name three persons out of each of 
the United States, and from the list of such persons each party 
shall alternately strike out one, the petitioners beginning, until 
the number shall be reduced to thirteen ; and from that number 
not less than seven nor more than nine names, as Congress shall 
direct, shall, in the presence of Congress, be drawn out by lot ; 
and the persons whose names shall be so drawn, or any five 
of them, shall be commissioners or judges, to hear and finally 
determine the controversy, so always as a major part of the 
judges who shall hear the cause shall agree in the determination; 
and if either party shall neglect to attend at the day appointed, 
without showing reasons which Congress shall judge sufficient, 
or being present, shall refuse to strike, the Congress shall pro- 
ceed to nominate three persons out of each State, and the secre- 
tary of Congress shall strike in behalf of such party absent or 
refusing ; and the judgment and sentence of the court, to be 
appointed in the manner before prescribed, shall be final and 
conclusive; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim 
or cause, the court shall nevertheless proceed to pronounce 
sentence or judgment, which shall in like manner be final and 



53^ The American Federal State 

decisive ; the judgment or sentence and other proceedings being 
in either case transmitted to Congress, and lodged among the 
acts of Congress for the security of the parties concerned ; pro- 
vided, that every commissioner, before he sits in judgment, shall 
take an oath, to be administered by one of the judges of the 
supreme court of the State where the cause shall be tried, " well 
and truly to hear and determine the matter in question, accord- 
ing to the best of his judgment, without favor, affection, or hope 
of reward." Provided, also, that no State shall be deprived of 
territory for the benefit of the United States. 

■^ All controversies concerning the private right of soil claimed 
under different grants of two or more States, whose jurisdictions, 
as they may respect such lands and the States which passed such 
grants are adjusted, the said grants or either of them being at 
the same time claimed to have originated antecedent to such 
settlement of jurisdiction, shall, on the petition of either party to 
the Congress of the United States, be finally determined, as near 
as may be, in the same manner as is before prescribed for de- 
ciding disputes respecting territorial jurisdiction between different 
States. 

8 The United States, in Congress assembled, shall also have 
the sole and exclusive right and power of regulating the alloy 
and value of coin struck by their own authority, or by that of 
the respective States ; fixing the standard of weights and meas- 
ures throughout the United States ; ^ regulating the trade and 
managing all affairs with the Indians, not members of any of the 
States ; provided that the legislative right of any State, within 
its own limits, be not infringed or violated ; ^° establishing and 
regulating post offices from one State to another, throughout all 
the United States, and exacting such postage on the papers 
passing through the same as may be requisite to defray the 
expenses of the said office ; ^^ appointing all officers of the land 
forces in the service of the United States, excepting regimental 
officers ; appointing all the officers of the naval forces, and com- 
missioning all officers whatever in the service of the United 
States ; making rules for the government and regulation of the 
said land and naval forces, and directing their operations. 

^'^ The United States, in Congress assembled, shall have 
authority to appoint a committee, to sit in the recess of Con- 
gress, to be denominated, " A Committee of the States," and to 
consist of one delegate from each State; and to appoint such 



Appendix A 539 

other committees and civil officers as may be necessary for 
managing the general affairs of the United States under their 
direction ; " to appoint one of their number to preside, provided 
that no person shall be allowed to serve in the office of president 
more than one year in any term of three years ; " to ascertain 
the necessary sums of money to be raised for the service of the 
United States, and to appropriate and apply the same for defray- 
ing the public expenses ; ^^ to borrow money or emit bills on the 
credit of the United States, transmitting every half year to the 
respective States an account of the sums of money so borrowed 
or emitted ; ^® to build and equip a navy ; " to agree upon the 
number of land forces, and to make requisitions from each State 
for its quota, in proportion to the number of white inhabitants in 
such State, which requisition shall be binding; and thereupon 
the Legislature of each State shall appoint the regimental offi- 
cers, raise the men, and clothe, arm, and equip them in a soldier- 
like manner, at the expense of the United States; and the 
officers and men so clothed, armed, and equipped shall march 
to the place appointed, and within the time agreed on by the 
United States, in Congress assembled ; but if the United States, 
in Congress assembled, shall, on consideration of circumstances, 
judge proper that any State should not raise men, or should 
raise a smaller number than its quota, and that any other State 
should raise a greater number of men than the quota thereof, 
such extra number shall be raised, officered, clothed, armed, and 
equipped in the same manner as the quota of such State, unless 
the Legislature of such State shall judge that such extra number 
can not be safely spared out of the same, in which case they 
shall raise, officer, clothe, arm, and equip as many of such extra 
number as they judge can be safely spared, and the officers and 
men so clothed, armed, and equipped shall march to the place 
appointed, and within the time agreed on by the United States, 
in Congress assembled. 

18 The United States, in Congress assembled, shall never eft- 
•^age in a war, nor grant letters of marque and reprisal in time of 
peace, nor enter into any treaties or alliances, nor coin money, 
nor regulate the value thereof, nor ascertain the sums and ex- 
penses necessary for the defense and welfare of the United 
States, or any of them, nor emit bills, nor borrow money on the 
credit of the United States, nor appropriate money, nor agree 
upon the number of vessels of war to be built or purchased, or 



540 The American Federal State 

the number of land or sea forces to be raised, nor appoint a com- 
mander-in-chief of the army or navy, unless nine States assent to 
the same ; nor shall a question on any other point, except for 
adjourning from day to day, be determined, unless by the votes 
of a majority of the United States, in Congress assembled. 

^^The Congress of the United States shall have power to 
adjourn to any time within the year, and to any place within the 
United States so that no period of adjournment be for a longer 
duration than the space of six months, and shall publish the 
journal of their proceedings monthly, except such parts thereof 
relating to treaties, alliances, or military operations as in their 
judgment require secrecy ; and the yeas and nays of the delegates 
of each State, on any question, shall be entered on the journal 
when it is desired by any delegate ; and the delegates of a 
State, or any of them, at his or their request, shall be furnished 
with a transcript of the said journal except such parts as are 
above excepted, to lay before the legislatures of the several 
States. 

Article X. — The Committee of the States, or any nine of 
them, shall be authorized to execute, in the recess of Congress, 
such of the powers of Congress as the United States, in Congress 
assembled, by the consent of nine States, shall, from time to time, 
think expedient to vest them with ; provided, that no power be 
delegated to the said Committee, for the exercise of which, by 
the Articles of Confederation, the voice of nine States in the 
Congress of the United States assembled is requisite. 

Article XT. — Canada, acceding to this Confederation, and 
joining in the measures of the United States, shall be admitted 
into, and entitled to all the advantages of this Union ; but no 
other colony shall be admitted into the same, unless such admis- 
sion be agreed to by nine States. 

Article XII. — All bills of credit emitted, moneys borrowed, 
and debts contracted by or under the authority of Congress, be- 
fore the assembling of the United States, in pursuance of the 
present Confederation, shall be deemed and considered as a 
charge against the United States, for payment and satisfaction 
whereof the said United States and the public faith are hereby 
solemnly pledged. 



Appendix A 54 1 

Article XIII. — Every State shall abide by the determinations 
of the United States, in Congress assembled, on all questions 
which by this Confederation are submitted to them. And the 
Articles of this Confederation shall be inviolably observed by 
every State, and the Union shall be perpetual ; nor shall any 
alteration at any time hereafter be made in any of them, unless 
such alteration be agreed to in a Congress of the United States, 
and be afterwards confirmed by the Legislatures of every State. 

And whereas, it hath pleased the great Governor of the world to 
incline the hearts of the Legislatures we respectively represent in 
Congress to approve of, and to authorize us to ratify, the said 
Articles of Confederation and perpetual Union ; know ye, that we, 
the undersigned delegates, by virtue of the power and authority 
to us given for that purpose, do, by these presents, in the name 
and in behalf of our respective constituents, fully and entirely 
ratify and confirm each and every of the said Articles of Confed- 
eration and perpetual Union, and all and singular the matters 
and things therein contained. And we do further solemnly 
plight and engage the faith of our respective constituents, that 
they shall abide by the determinations of the United States, in 
Congress assembled, on all questions which by the said Con- 
federation are submitted to them ; and that the Articles thereof 
shall be inviolably observed by the States we respectively repre- 
sent, and that the Union shall be perpetual. In witness whereof, 
we have hereunto set our hands in Congress. Done at Philadel- 
phia, in the State of Pennsylvania, the ninth day of July, in the 
year of our Lord 1778, and in the third year of the Independence 
of America. 



APPENDIX B 



Preamble. 
Objects of 
the Constitu- 
tion (cf. A. of 
C, Art. III). 



CONSTITUTION OF THE UNITED STATES— 1787 

We the people of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquility, pro- 
vide for the common defence, promote the general Welfare, and 
secure the Blessings of Liberty to ourselves and our Posterity, 
do ordain and establish this Constitution for the United States 
of America. 



Congress. 
Two houses. 



House of 
Represen- 
tatives. 
Term and 
election. 

Qualifica- 
tions — age, 
citizenship, 
residence. 

Method of 
apportioning 
representa- 
tives. (Part 
in brackets 
superseded 
by Sec. 2 of 
Amendment 
XIV.) 



Article. I. 

Section i. All legislative Powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a Sen- 
ate and House of Representatives. 

Section 2. [i] The House of Representatives shall be com- 
posed of Members chosen every second Year by the People of 
the several States, and the Electors in each State shall have the 
Qualifications requisite for Electors of the most numerous Branch 
of the State Legislature. 

[2] No Person shall be a Representative who shall not have 
attained to the age of twenty-five Years, and been seven Years a 
Citizen of the United States, and who shall not, when elected, be 
an Inhabitant of that State in which he shall be chosen. 

[3] [Representatives and direct Taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective Numbers, which shall be 
determined by adding to the whole Number of free Persons, 
including those bound to Service for a Term of Years, and ex- 
cluding Indians not taxed, three fifths of all other Persons.] 
The actual Enumeration shall be made within three Years 
after the first Meeting of the Congress of the United States, 

A. of C. = Articles of Confederation. 
542 



Appendix B 



543 



and within every subsequent Term of ten Years, in such Manner 
as they shall by Law direct. The Number of Representatives Census. 
shall not exceed one for every thirty Thousand, but each State 
shall have at least one Representative ; and until such enumera- 
tion shall be made, the State of New Hampshire shall be entitled Temporary 
to chuse three, Massachusetts eight, Rhode-Island and Providence apportion- 
Plantations one, Connecticut five. New York six. New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, 
North Carolina five. South Carolina five, and Georgia three. 

[4] When vacancies happen in the Representation from any Vacancies. 
State, the Executive Authority thereof shall issue Writs of Elec- 
tion to fill such Vacancies. 

[5] The House of Representatives shall chuse their Speaker Officers. 
and other Officers ; and shall have the sole Power of Impeach- 
ment. 



Section 3. [i] The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the Legislature 
thereof, for six Years ; and each Senator shall have one Vote. 

[2] Immediately after they shall be assembled in Consequence 
of the first Election, they shall be divided as equally as may be 
into three Classes. The Seats of the Senators of the first Class 
shall be vacated at the Expiration of the second Year, of the 
second Class at the Expiration of the fourth Year, and of the 
third Class at the Expiration of the sixth Year, so that one-third 
may be chosen every second Year ; and if Vacancies happen by 
Resignation, or otherwise, during the Recess of the Legislature 
of any State, the Executive thereof may make temporary Appoint- 
ments until the next Meeting of the Legislature, which shall then 
fill such Vacancies. 

[3] No Person shall be a Senator who shall not have attained 
to the Age of thirty Years, and been nine Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant 
of that State for which he shall be chosen. 

[4] The Vice President of the United States shall be President 
of the Senate, but shall have no Vote, unless they be equally 
divided. 

[5] The Senate shall chuse their other Officers, and also a 
President pro tempore, in the Absence of the Vice President, 
or when he shall exercise the Office of President of the United 
States. 



Senate. 
Election and 
term (cf. A. 
of C, Art. VI). 

Division of 
Senators 
into three 
classes. 



Vacancies. 



Qualifica- 
tions — age, 
citizenship, 
residence. 

Vice-presi- 
dent. 



Officers (cf. 
A. ofC, 
Art. 1X18). 



544 



The American Federal State 



Trial of im- 
peachments. 



Judgment in 
cases of im- 
peachment. 



Both 

Houses. 

Times, 

places, and 

method of 

electing 

members. 

Time of 
meeting. 

Membership 

regulations. 

Quorum. 



Rules of each 
house. 



Journals 
(cf. A. of C, 
Art. 1X18). 



Special ad- 
journments. 



[6] The Senate shall have the sole Power to try all Impeach- 
ments. When sitting for that Purpose, they shall be on Oath or 
Affirmation. When the President of the United States is tried, 
the Chief Justice shall preside : And no Person shall be convicted 
without the Concurrence of two thirds of the Members present. 

[7] Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and disqualification to 
hold and enjoy any Office of honor. Trust or Profit under the 
United States : but the Party convicted shall nevertheless be 
liable and subject to Indictment, Trial, Judgment and Punish- 
ment, according to Law. 

Section 4. [i] The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be prescribed 
in each State by the Legislature thereof; but the Congress may 
at any time by Law make or alter such Regulations, except as to 
the Places of chusing Senators. 

[2] The Congress shall assemble at least once in every Year, 
and such Meeting shall be on the first Monday in December, 
unless they shall by Law appoint a different Day. 

Section 5. [i] Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, and a Majority 
of each shall constitute a Quorum to do Business ; but a smaller 
Number may adjourn from day to day, and may be authorized to 
compel the attendance of absent Members, in such Manner, and 
under such Penalties as each House may provide. 

[2] Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behaviour, and, with the Con- 
currence of two thirds, expel a Member. 

[3] Each House shall keep a Journal of its Proceedings, and 
from time to time publish the same, excepting such Parts as may 
in their Judgment require Secrecy ; and the Yeas and Nays of 
the Members of either House on any question shall, at the Desire 
of one fifth of those Present, be entered on the Journal. 

[4] Neither House, during the Session of Congress, shall, 
without the Consent of the other, adjourn for more than three 
days, nor to any other Place than that in which the two Houses 
shall be sitting. 

Section 6. [i] The Senators and Representatives shall re- 
ceive a Compensation for their Services, to be ascertained by 



Appendix B 



545 



law, and paid out of the Treasury of the United States. They 
shall in all Cases, except Treason, Felony, and Breach of the 
Peace, be privileged from Arrest during their Attendance at the 
Session of their respective Houses, and in going to and returning 
from the same ; and for any Speech or Debate in either House, 
they shall not be questioned in any other Place. 

[2] No Senator or Representative shall, during the Time for 
which he was elected, be appointed to any civil Office under the 
Authority of the United States, which shall have been created, 
or the Emoluments whereof shall have been encreased during 
such time ; and no Person holding any Office under the United 
States, shall be a Member of either House during his Continuance 
in Office. 



Compensa- 
tion and 
privileges of 
members 
(cf. A. of C, 
Art. V8). 

Disabilities 
of members 
(cf. A. ofC, 
Art. V2). 



Section 7. [i] All Bills for raising Revenue shall originate 
in the House of Representatives ; but the Senate may propose or 
concur with Amendments as on other Bills. 

[2] Every Bill which shall have passed the House of Repre- 
sentatives and the Senate, shall, before it become a Law, be 
presented to the President of the United States ; If he approve 
he shall sign it, but if not he shall return it, with his Objections 
to that House in which it shall have originated, who shall enter 
the Objections at large on their Journal, and proceed to recon- 
sider it. If after such Reconsideration two thirds of that House 
shall agree to pass the Bill, it shall be sent, together with the 
Objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two thirds of that House, it 
shall become a Law. But in all such Cases the Votes of both 
Houses shall be determined by Yeas and Nays, and the Names 
of the Persons voting for and against the Bill shall be entered on 
the Journal of each House respectively. If any Bill shall not be 
returned by the President within ten Days (Sundays excepted) 
after it shall have been presented to him, the Same shall be a 
Law, in like Manner as if he had signed it, unless the Congress 
by their Adjournment prevent its Return, in which Case it shall 
not be a Law. 

[3] Every Order, Resolution, or Vote to which the Concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of Adjournment) shall be presented to the 
President of the United States and before the Same shall take 
Effect, shall be approved by him, or being disapproved by him, 

2N 



Revenue 
bills. 



Veto of 
President on 
bills (cf. A. 
of C, Art. 
1X18). 



Veto on 
resolutions. 



546 



The American Federal State 



shall be repassed by two thirds of the Senate and House of 
Representatives, according to the Rules and Limitations pre- 
scribed in the Case of a Bill. 



Powers of 
Congress. 

Taxation (cf. 
A. of C, 
Art. VIII). 

Borrowing.! 

Regulating 
commerce.2 

Naturaliza- 
tion and 
bankruptcy. 

Coins, 
weights, and 
measures. 
Counter- 
feiting. 

Post offices.8 
Patents and 
copyrights. 

Inferior 
courts.4 
Piracies. 

War (cf. A. 
of C, Art. 
1X1,4). 
Army.6 

Navy.* 
Land and 
naval forces.^ 

Militia, in 
service. 

Militia, 
organization. 



Section 8. The Congress shall have Power [i] To lay and 
collect Taxes, Duties, Imposts and Excises, to pay the Debts and 
provide for the common Defence and general Welfare of the 
United States; but all duties, Imposts and Excises shall be 
uniform throughout the United States ; 

[2] To borrow Money on the credit of the United States ; 

[3] To regulate Commerce with foreign Nations, and among 
the several States, and with the Indian Tribes; 

[4] To establish an uniform Rule of Naturalization, and 
uniform Laws on the subject of Bankruptcies throughout the 
United States ; 

[5] To coin Money, regulate the Value thereof, and of foreign 
Coin, and fix the Standard of Weights and Measures ; 

[6] To provide for the Punishment of counterfeiting the 
Securities and current Coin of the United States ; 

[7] To establish Post Offices and post Roads ; 

[8] To promote the Progress of Science and useful Arts by se- 
curing for limited Times to Authors and Inventors the exclusive 
Right to their respective Writings and Discoveries ; 

[9] To constitute Tribunals inferior to the supreme Court ; 

[10] To define and punish Piracies and Felonies committed 
on the high Seas, and Oifences against the Law of Nations ; 

[11] To declare War, grant Letters of Marque and Reprisal, 
and make Rules concerning Captures on Land and Water; 

[12] To raise and support Armies, but no Appropriation of 
Money to that Use shall be for a longer Term than two Years ; 

[13] To provide and maintain a Navy; 

[14] To make Rules for the Government and Regulation of 
the land and naval Forces ; 

[15] To provide for calling forth the Militia to execute the 
Laws of the Union, suppress Insurrections and repel Invasions ; 

[16] To provide for organizing, arming, and disciplining, the 
Militia, and for governing such Part of them as may be employed 



iCf. A.ofC.Art. IX". 
aCf.A. of C, Art. 1X8,9. 
8 Cf. A. of C, Art. IXio. 



* Cf. A. of C, Art. 1X6. 

e Cf. A. of C, Art. Vin, Art. IX". 

eCf.A. ofC.Art. 1X19. 



7Cf. A. ofC, Art. IX". 



Appendix B 



547 



in the Service of the United States, reserving to the States 
respectively, the Appointment of the Officers, and the Authority 
of training the Militia according to the discipline prescribed by 
Congress ; 

[17] To exercise exclusive Legislation in all Cases whatsoever, Seat of 
over such District (not exceeding ten Miles square) as may, by government 
Cession of particular States, and the Acceptance of Congress 
become the Seat of the Government of the United States, and to 
exercise like Authority over all Places purchased by the Consent 
of the Legislature of the State in which the Same shall be, for 
the Erection of Forts, Magazines, Arsenals, dock- Yards, and 
other needful Buildings ; — And 

[18] To make all Laws which shall be necessary and proper Supple- 
for carrying into Execution the foregoing Powers, and all other mentary 
Powers vested by this Constitution in the Government of the ^S>s a ion. 
United States, or in any Department or Officer thereof. 



Section 9. [i] The Migration or Importation of such Per- 
sons as any of ^ the States now existing shall think proper to 
admit, shall not be prohibited by the Congress prior to the Year 
one thousand eight hundred and eight, but a Tax or duty may 
be imposed on such Importation, not exceeding ten dollars for 
each Person. 

[2] The Privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it. 

[3] No Bill of Attainder or ex post facto Law shall be 
passed. 

[4] No Capitation, or other direct, tax shall be laid, unless in 
Proportion to the Census or Enumeration herein before directed 
to be taken. 

[5] No Tax or Duty shall be laid on Articles exported from 
any State. 

[6] No Preference shall be given by any Regulation of Com- 
merce or Revenue to the Ports of one State over those of another : 
nor shall Vessels bound to, or from, one State, be obliged to 
enter, clear, or pay Duties in another. 

[7] No money shall be drawn from the Treasury, but in Con- 
sequence of Appropriations made by Law ; and a regular State- 
ment and Account of the Receipts and Expenditures of all public 
Money shall be published from time to time. 



Limitations 
OH powers of 
Congress, 

Slave trade. 



Habeas 
corpus. 
Bills of 
attainder and 
ex post facto 
laws. 
Direct tax. 



Tax on ex- 
ports. 

Uniform 

commercial 

regulations. 



Finance. 



548 



The American Federal State 



Titles of no- 
bility and 
presents 
(cf. A. ofC, 
Art. VI 2. 3). 



Limitations 
on powers of 
States. 

Specific 
prohibitions 
(cf. A. of C, 
Art. VI 1.3,4), 

Limitations 
on imposts 
(cf. A. of C, 
Art. VI 6). 



Prohibitions 
removable 
with consent 
of Congress 
(cf. A. of C. 
Art. VI 8, 7), 



[8] No title of Nobility shall be granted by the United States : 
And no Person holding any Office of Profit or Trust under them, 
shall, without the Consent of the Congress, accept of any present. 
Emolument, Office, or Title, of any kind whatever, from any 
King, Prince, or foreign State. 

Section lo. [i] No State shall enter into any Treaty, Alli- 
ance, or Confederation ; grant Letters of Marque and Reprisal ; 
coin Money ; emit Bills of Credit, make any Thing but gold and 
silver Coin a Tender in Payment of Debts ; pass any Bill of 
Attainder, ex post facto Law, or Law impairing the obligation of 
Contracts, or grant any Title of Nobility. 

[2] No State shall, without the Consent of the Congress, lay 
any Imposts or Duties on Imports or Exports, except what may 
be absolutely necessary for executing it's inspection Laws : and 
the net Produce of all Duties and Imposts, laid by any State on 
Imports or Exports, shall be for the Use of the Treasury of the 
United States ; and all such Laws shall be subject to the Revision 
and Controul of the Congress. 

[3] No State shall, without the Consent of Congress, lay 
any Duty of tonnage, keep Troops, or Ships of War in time of 
Peace, enter into any Agreement or Compact with another State, 
or with a foreign Power, or engage in War, unless actually in- 
vaded, or in such imminent Danger as will not admit of delay. 



President 
(cf. A. of C, 
Art. IX 12, 
Art. X). 
Term. 
Presidential 
electors and 
method of 
choosing 
President. 

(Part in 
brackets 
superseded 
by XII 
Amend- 
ment.) 



Article. II. 

Section i. [i] The executive Power shall be vested in a 
President of the United States of America. He shall hold his 
Office during the Term of four Years, and, together with the 
Vice President, chosen for the same term, be elected, as follows : 

[2] Each State shall appoint, in such Manner as the Legisla- 
ture thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which the State may 
be entitled in the Congress : but no Senator or Representative, 
or Person holding an Office of Trust or Profit under the United 
States, shall be appointed an Elector. [The electors shall meet 
in their respective States, and vote by ballot for two Persons, of 
whom one at least shall not be an inhabitant of the same State 
with themselves. And they shall make a List of all the Persons 
voted for, and of the Number of Votes for each ; which List they 



Appendix B 549 

shall sign and certify, and transmit sealed to the Seat of the 
Government of the United States, directed to the President of 
the Senate. The President of the Senate shall, in the Presence 
of the Senate and House of Representatives, open all the Cer- 
tificates, and the Votes shall then be counted. The Person 
having the greatest Number of Votes shall be the President, if 
such Number be a Majority of the whole Number of Electors 
appointed ; and if there be more than one who have such Major- 
ity, and have an equal Number of Votes, then the House of 
Representatives shall immediately chuse by Ballot one of them 
for President ; and if no Person have a Majority, then from the 
five highest on the List the said House shall in like Manner chuse 
the President. But in chusing the President, the Votes shall be 
taken by States, the Representation from each State having one 
Vote ; A quorum for this Purpose shall consist of a Member or 
Members from two-thirds of the States, and a Majority of all the 
States shall be necessary to a Choice. In every Case, after the 
Choice of the President, the Person having the greatest Number 
of Votes of the Electors shall be the Vice President. But if 
there should remain two or more who have equal Votes, the 
Senate shall chuse from them by Ballot the Vice President.] 

[3] The Congress may determine the Time of chusing the Dates of 
Electors, and the Day on which they shall give their Votes ; elections. 
which Day shall be the same throughout the United States. 

[4] No Person except a natural born Citizen, or a citizen of Qualifica- 

the United States, at the time of the Adoption of this Constitu- t'ons, citizen- 

tion, shall be eligible to the Office of President ; neither shall ^ 'f' ^^■^' 
° ' and resi- 

any Person be eligible to that Office who shall not have attained dence. 

to the Age of thirty five Years, and been fourteen Years a Resi- 
dent within the United States. 

[5] In Case of the Removal of the President from Office, or Presidential 
of his Death, Resignation, or Inability to discharge the Powers succession. 
and Duties of the said Office, the same shall devolve on the Vice 
President, and the Congress may by Law provide for the Case of 
Removal, Death, Resignation, or Inability, both of the President 
and Vice President, declaring what Officer shall then act as Presi- 
dent, and such Officer shall act accordingly, until the Disability 
be removed, or a President shall be elected. 

[6] The President shall, at stated Times, receive for his Ser- Compensa- 
vices, a Compensation, which shall neither be encreased nor t'o'*- 
diminished during the Period for which he shall have been 



550 



The American Federal State 



Oath of 
office. 



Powers of 
President, 



Military, 
supervisory, 
and judicial. 



In treaties 
and in ap- 
pointments. 



Temporary 
appoint- 
ments. 



elected, and he shall not receive within that Period any other 
Emolument from the United States, or any of them. 

[7] Before he enter on the Execution of his Office, he shall 
take the following Oath or Affirmation : — "I do solemnly swear 
(or affirm) that I will faithfully execute the Office of President of 
the United States, and will to the best of my Ability, preserve, 
protect and defend the Constitution of the United States." 

Section 2. [i] The President shall be Commander in Chief 
of the Army and Navy of the United States, and of the Militia of 
the several States, when called into the actual Service of the 
United States ; he may require the Opinion, in writing, of the 
principal Officer in each of the executive Departments, upon any 
Subject relating to the Duties of their respective Offices, and he 
shall have Power to grant Reprieves and Pardons for Offences 
against the United States, except in Cases of Impeachment. 

[2] He shall have Power, by and with the Advice and Con- 
sent of the Senate, to make Treaties, provided two-thirds of the 
Senators present concur ; and he shall nominate, and by and with 
the Advice and Consent of the Senate, shall appoint Ambassa- 
dors, other public Ministers and Consuls, Judges of the supreme 
Court, and all other Officers of the United States, whose Appoint- 
ments are not herein otherwise provided for, and which shall 
be established by Law : but the Congress may by Law vest the 
Appointment of such inferior Officers, as they think proper, in the 
President alone, in the Courts of Law, or in the Heads of Depart- 
ments. 

[3] The President shall have Power to fill up all Vacancies 
that may happen during the Recess of the Senate, by granting 
Commissions which shall expire at the End of their next Session. 



Legislative Section 3. He shall from time to time give to the Congress 

powers. Information of the State of the Union, and recommend to their 

Consideration such Measures as he shall judge necessary and 
expedient ; he may, on extraordinary Occasions, convene both 
Houses, or either of them, and in Case of Disagreement between 
them, with Respect to the Time of Adjournment, he may adjourn 
them to such Time as he shall think proper; he shall receive 
Ambassadors and other public Ministers ; he shall take Care that 
the Laws be faithfully executed, and shall Commission all the 
Officers of the United States. 



Appendix B 



551 



Section 4. The President, Vice President and all civil Officers Liability to 
of the United States, shall be removed from Office on Impeach- impeach- 
ment for, and Conviction of. Treason, Bribery, or other high ™^'^*" 
Crimes and Misdemeanors. 

Article III. 



Section i. The judicial Power of the United States, shall be Judiciary, 
vested in one supreme Court, and in such inferior Courts as the Courts. 
Congress may from time to time ordain and establish. The 
Judges, both of the supreme and inferior Courts, shall hold their Judges : term 
Offices during good Behaviour, and shall, at stated Times, receive ^""^ compen- 
for their Services, a Compensation, which shall not be diminished 
during their Continuance in Office. 



Jurisdiction 
(cf. A. of C. 
Art. 1X6. 7). 



Section 2. [i] The judicial Power shall extend to all Cases, 
in Law and Equity, arising under this Constitution, the Laws of 
the United States, and Treaties made, or which shall be made, 
under their Authority ; — to all cases affiscting Ambassadors, 
other public Ministers and Consuls ; — to all cases of admiralty and 
maritime Jurisdiction; — to Controversies to which the United 
States shall be a party ; — to Controversies between two or more 
States ; — between a State and Citizens of another State ; — be- 
tween Citizens of different States — between Citizens of the same 
State claiming Lands under Grants of different States, and be- 
tween a State, or the Citizens thereof, and foreign States, Citizens 
or subjects. 

[2] In all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be Party, the 
supreme Court shall have original Jurisdiction. In all the other 
Cases before mentioned, the supreme Court shall have appellate 
Jurisdiction, both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make. 

[3] The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury ; and such Trial shall be held in the State where 
the said Crimes shall have been committed ; but when not com- 
mitted within any State, the Trial shall be at such Place or 
Places as the Congress may by Law have directed. 



Section 3. [i] Treason against the United States, shall con- Treason: 
sist only in levying War against them, or in adhering to their definition, 



Original and 
appellate ju- 
risdiction of 
Supreme 
Court. 



Jury trial. 
Place of trial. 



552 



The American Federal State 



punishment. 



Enemies, giving them Aid and Comfort. No Person shall be 
convicted of Treason unless on the Testimony of two Witnesses 
to the same overt Act, or on Confession in open Court. 

[2] The Congress shall have Power to declare the Punishment 
of Treason, but no Attainder of Treason shall work Corruption 
of Blood, or Forfeiture except during the Life of the Person 
attainted. 

Article. IV. 

Section i. Full Faith and Credit shall be given in each State 
to the public Acts, Records, and judicial Proceedings of every 
other State. And the Congress may by general Laws prescribe 
the Manner in which such Acts, Records and Proceedings shall 
be proved, and the Effect thereof. 

Sectioft 2. [i] The Citizens of each State shall be entitled 
to all Privileges and Immunities of Citizens in the several States. 

[2] A Person charged in any State with Treason, Felony or 
other Crime, who shall flee from Justice, and be found in another 
State, shall on Demand of the executive Authority of the State 
from which he fled, be delivered up, to be removed to the State 
having Jurisdiction of the Crime. 

[3] No Person held to Service or Labour in one State, under 
the Laws thereof, escaping into another, shall, in Consequence of 
any Law or Regulation therein, be discharged from such Service 
or Labour, but shall be delivered up on Claim of the Party to 
whom such Service or Labour may be due. 

Section 3. [i] New States may be admitted by the Congress 
into this Union; but no new State shall be formed or erected 
within the Jurisdiction of any other State ; nor any State be 
formed by the Junction of two or more States, or Parts of States, 
without the Consent of the Legislatures of the States concerned 
as well as of the Congress. 

[2] The Congress shall have Power to dispose of and make 
all needful Rules and Regulations respecting the Territory or 
other Property belonging to the United States ; and nothing in 
this Constitution shall be so construed as to Prejudice any Claims 
of the United States, or of any particular State. 

Protection of Section 4. The United States shall guarantee to every State in 
states. this Union a Republican Form of Government, and shall protect 



Nation 

AND States. 

Interstate 

comity 

(cf. A. of C, 

Art. IV8). 

Interstate 
citizenship 
(cf. A. of C, 
Art. I VI). 

Extradition 
of criminals, 
(cf. A. of C, 
Art. IV2.) 

Fugitive 
slaves. 



Admission of 
new states 
(cf. A. of C, 
Art. XI). 



Government 
of national 
territory. 



Appendix B 



553 



each of them against Invasion ; and on Application of the Legis- 
lature, or of the Executive (when the Legislature cannot be con- 
vened) against domestic Violence. 



Article. V. 

The Congress, whenever two thirds of both Houses shall deem Amend- 
it necessary, shall propose Amendments to this Constitution, or, ment of 
on the Application of the Legislatures of two thirds of the several 
States, shall call a Convention for proposing Amendments, (cf. A. ofC. 
which, in either Case, shall be valid to all Intents and Purposes Art. XIII). 
as Part of this Constitution, when ratified by the Legislatures of 
three fourths of the several States, or by Conventions in three 
fourths thereof, as the one or the other Mode of Ratification may 
be proposed by the Congress ; Provided that no Amendment 
which may be made prior to the Year One thousand eight hun- 
dred and eight shall in any Manner affect the first and fourth 
Clauses in the Ninth Section of the first Article ; and that no 
State, without its Consent, shall be deprived of its equal Suffrage 
in the Senate. 



Article. VI. 

[l] All Debts contracted and Engagements entered into, be- 
fore the Adoption of this Constitution, shall be as valid against 
the United States under this Constitution, as under the Confeder- 
ation. 

[2] This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land ; and 
the Judges in every State shall be bound thereby, any Thing 
in the Constitution or Laws of any State to the Contrary not- 
withstanding. 

[3] The Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all executive 
and judicial Officers, both of the United States and of the several 
States, shall be bound by Oath or Affirmation, to support this 
Constitution ; but no religious Test shall ever be required as a 
Qualification to any Office or public Trust under the United 
States. 



Miscella- 
neous. 
Preexisting 
national 
debt 

(cf. A. of C. 
Art. XII). 

Supremacy 
of Constitu- 
tion, treaties, 
and national 
law. 

Oaths of 
national and 
state officials. 



554 



The American Federal State 



Article. VII. 

Ratification. The Ratification of the Conventions of nine States, shall be 
sufficient for the Establishment of this Constitution between the 
States so ratifying the Same. 

Done in Convention by the Unanimous Consent of the States 
present the Seventeenth Day of September in the Year of our 
Lord one thousand seven hundred and Eighty seven and of the 
Independence of the United States of America the Twelfth 
In Witness whereof We have hereunto subscribed our Names, 

G? Washington - 
Presidt. and Deputy from Virginia 
[and thirty eight members from all the states except Rhode Island.] 



Prohibitions 
on Congress 
respecting 
religion, 
speech, and 
the press. 



Right to bear 
arms. 



Quartering 
of soldiers. 



ARTICLES IN ADDITION TO, AND AMENDMENT OF, 
THE CONSTITUTION OF THE UNITED STATES 
OF AMERICA, PROPOSED BY CONGRESS, AND 
RATIFIED BY THE LEGISLATURES OF THE SEV- 
ERAL STATES PURSUANT TO THE FIFTH ARTI- 
CLE OF THE ORIGINAL CONSTITUTION. 

[Article I^] 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press ; or the right of the people 
peaceably to assemble, and to petition the Government for a re- 
dress of grievances. 

[Article IP] 

A well regulated Militia, being necessary to the security of a 
free State, the right of the people to keep and bear Arms, shall 
not be infringed. 

[Article III^] 

No Soldier shall, in time of peace be quartered in any house, 
without the consent of the Owner, nor in time of war, but in a 
manner to be prescribed by law. 

1 First ten amendments proposed by Congress, Sept. 25, 1789. Pro- 
claimed to be in force Dec, 15, 1791. 



in criminal 
cases. 



Appendix B 555 

[Article IV ^] 

The right of the people to be secure in their persons, houses, Right of 
papers, and effects, against unreasonable searches and seizures, search, 
shall not be violated, and no Warrants shall issue, but upon 
probable cause, supported by Oath or affirmation, and particularly 
describing the place to be searched, and the persons or things to 
be seized. 

[Article V^] 

No person shall be held to answer for a capital, or otherwise Protection 
infamous crime, unless on a presentment or indictment of a °^ accused^ 
Grand Jury, except in cases arising in the land or naval forces, 
or in the Militia, when in actual service in time of War or public 
danger ; nor shall any person be subject for the same offence to 
be twice put in jeopardy of life or limb ; nor shall be compelled 
in any Criminal Case to be a witness against himself, nor be de- 
prived of life, liberty, or property, without due process of law ; 
nor shall private property be taken for public use, without just 
compensation. 

[Article VP] 

In all criminal prosecutions, the accused shall enjoy the right Rights of 
to a speedy and public trial, by an impartial jury of the State and accused re- 
district wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him ; to have compulsory 
process for obtaining Witnesses in his favor, and to have the 
Assistance of Counsel for his defence. 

[Article VIP] 

In suits at common law, where the value in controversy shall Jury trial in 
exceed twenty dollars, the right of trial by jury shall be pre- lawsuits, 
served, and no fact tried by a jury shall be otherwise re-exam- 
ined in any Court of the United States, than according to the 
rules of the common law. 

[Article VIII i] 

Excessive bail shall not be required, nor excessive fines im- Bail and 
posed, nor cruel and unusual punishments inflicted. punishment. 



556 



The American Federal State 



[Article IX ^] 

Unenumcr- The enumeration in the Constitution, of certain rights, shall 

atcd rights. ^^^ (^^ construed to deny or disparage others retained by the 
people. 

[Article X'] 

Undelegated The powers not delegated to the United States by the Consti- 
power.s. tution, nor prohibited by it to the States, are reserved to the 

States respectively, or to the people. 



Exemption 
of states from 
suit. (Pro- 
posed Sept. 5, 
1794. De- 
clared in 
force Jan. 8, 
1798.) 

New method 
of elecling 
President. 

(To super- 
sede part of 
Art. II, Sec. 
1, cl. 2.) 

(Proposed 
Dec. 12, 1803. 
Dechired in 
force Sept. 25, 
1804.) 



Article XI 

The Judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by Citizens of another State, or 
by Citizens or Subjects of any P'oreign State. 

Article XII 

The Electors shall ineet in their respective states, and vote by 
ballot for President and Vice-President, one of whoiti, at least, 
shall not be an inhabitant of the same state with themselves ; 
they shall name in their ballots the person voted for as President, 
and in distinct ballots the person voted for as Vice-President, 
and they shall make distinct lists of all persons voted for as 
President, and of all persons voted for as Vice-President, and 
of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the government of the 
United States, directed to the President of the Senate; — The 
President of the Senate shall, in presence of the Senate and 
House of Representatives, open all the certificates and the votes 
shall then be counted ; — The person having the greatest number 
of votes for President, shall be the President, if such number be 
a majority of the whole number of Electors appointed ; and if no 
person have .such majority, then from the persons having the 
highest nuinbers not exceeding three on the list of those voted 
for as President, the House of Representatives shall choose im- 
mediately, by ballot, the President. But in choosing the Presi- 
dent, the votes shall be taken by states, the representation from 
each state having one vote ; a quorum for this purpose shall con- 



Appendix B 



557 



sist of a member or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. And if 
the House of Representatives shall not choose a President when- 
ever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the Vice-President 
shall act as President, as in the case of the death or other con- 
stitutional disability of the President. The person having the 
greatest number of votes as Vice-President, shall be the Vice- 
President, if such number be a majority of the whole number of 
Electors appointed, and if no person have a majority, then from 
the two highest numbers on the list, the Senate shall choose the 
Vice-President ; a quorum for the purpose shall consist of two- 
thirds of the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of President shall be eli- 
gible to that of Vice-President of the United States. 



Article XIII 

Section i. Neither slavery nor involuntary servitude, except as Abolition of 

a punishment for crime whereof the party shall have been duly slavery, 

convicted, shall exist within the United States, or any place sub- i h'^^^^Tfifii; 

ject to their jurisdiction. Declared in 

force Dec. 18, 

Section 2. Congress shall have power to enforce this article 1865.) 
by appropriate legislation. 



Article XIV 

Section i. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No State 
shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States ; nor shall any 
State deprive any person of life, liberty, or property, without due 
process of law ; nor deny to any person within its jurisdiction the 
equal protection of the laws. 



Citizens of 
the United 
States — pro- 
tection of. 
(Proposed 
June 16, 1866. 
Declared in 
force July 28, 
1868.) 



Section 2. Representatives shall be apportioned among the New basis of 

several States according to their respective numbers, counting representa- 

the whole number of persons in each State, excluding Indians ' 

'■ ° Congress, 

not taxed. But when the right to vote at any election for the 



558 



Appendix B 



(Superseding 
part of Art. I, 
sec. 2, cl. 3.) 



Disabilities 
of officials 
engaged in 
rebellion. 



Validity of 
war debt. 



choice of electors for President and Vice President of the United 
States, Representatives in Congress, the Executive and Judicial 
officers of a State, or the members of the Legislature thereof, is 
denied to any of the male inhabitants of such State, being twenty- 
one years of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other crime, the 
basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in 
Congress, or elector of President and Vice President, or hold 
any office, civil or military, under the United States, or under 
any State, who, having previously taken an oath, as a member of 
Congress, or as an officer of the United States, or as a member 
of any State legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof. But Congress may 
by two-thirds vote of each House, remove such disability. 

Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for payment 
of pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave ; 
but all such debts, obligations and claims shall be held illegal 
and void. 

Section 5. The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 



Voting rights 
of citizens of 
the U.S. 
(Proposed 
Feb. 27, 1869. 
Declared in 
force Mar. 30, 
1870.) 



Article XV 

Section i. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any 
State on account of race, color or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this 
article by appropriate legislation. 



APPENDIX C 

PROMINENT NATIONAL OFFICIALS 
TABLE I— THE PRESIDENTS 



Name 


State 


Party 


Electoral Vote 


Years 
in Office 


I. George Washington 


Va. 


(Fed.) 


unanimous 
unanimous 


I 789-1 793 

I 793-1 797 


2. John Adams 


Mass. 


Fed. 


71 to 68 


1797-1801 


3. Thomas Jefferson 


Va. 


Dem. R. 


73 to 65 
162 to 14 


1801-1805 
I 805-1 809 


4. James Madison 


Va. 


Dem. R. 


122 to 47 
128 to 89 


1809-1813 
1813-1817 


5. James Monroe 


Va. 


Dem. R. 


183 to 34 
231 to I 


1817-1821 
1821-1825 


6. John Q, Adams 


Mass. 


Dem. R. 


84 out of 261 


I 825-1 829 


7. Andrew Jackson 


Tenn. 


Dem. 


178 to 83 
219 to 49 


1829-1833 
I 833-1837 


8. Martin Van Buren 


N.Y. 


Dem. 


170 to 73 


1837-1841 


9. Wm. H. Harrison 


Ohio 


Whig 


234 to 60 


1841-1841 


10. John Tyler ^ 


Va. 


(Whig) 




1841-1845 


II. James K. Polk 


Tenn. 


Dem. 


170 to 105 


1 845-1 849 


12. Zachary Taylor 


La. 


Whig 


163 to 127 


I 849- I 850 


13. Millard Fillmore ^ 


N.Y. 


Whig 




1850-1853 


14. Franklin Pierce 


N.H. 


Dem, 


254 to 42 


1853-1857 


15. James Buchanan 


Pa. 


Dem. 


174 to 114 


1857-1861 


16. Abraham Lincoln 


111. 


Rep. 


180 to 123 

212 to 21 


I 861-1865 
I 865-1 865 


17. Andrew Johnson ^ 


Tenn. 


(Rep.) 




I 865-1869 


18. Ulysses S. Grant 


111. 


Rep. 


214 to 80 
286 to 63 


1869-1873 
1873-1877 


19. Rutherford B. Hayes 


Ohio 


Rep. 


185 to 184 


1877-1881 


20. James A. Garfield 


Ohio 


Rep. 


214 to 155 


1881-1881 


21. Chester A. Arthur 1 


N.Y. 


Rep. 




1881-1885 


22. Grover Cleveland 


N.Y. 


Dem. 


219 to 182 


I 885- I 889 


23. Benjamin Harrison 


Ind. 


Rep. 


233 to 168 


18S9-1893 


24. Grover Cleveland 


N.Y. 


Dem. 


277 to 167 


I 893-1 897 


25. William McKinley 


Ohio 


Rep. 


271 to 176 
292 to 155 


1897-1901 
1901-1901 


26. Theodore Roosevelt ^ 


N.Y. 


Rep. 




1901- 



* Raised from the vice-presidency. 
560 



Appendix C 



561 



TABLE II — CHIEF JUSTICES OF THE SUPREME COURT 



Name 


State 


Years 
in Office 


1. John Jay 

2. John Rutledge ...... 

3. Oliver Ellsworth 

4. John Marshall 

5. Roger B. Taney 

6. Salmon P. Chase 

7. Morrison R. Waite 

8. Melville W. Fuller 


New York 

South Carolina 

Connecticut 

Virginia 

Maryland 

Ohio 

Ohio 

Illinois 


I 789-1 795 

1 795-1 795 
1796-1800 
1801-1835 
1836-1864 
I 864-1 873 
I 874-1 888 
1888- 



TABLE III — SPEAKERS OF THE HOUSE SINCE 1861 











Years 


Name 


Congress 


State 


Party 


in Office 


1. Galusha A. Grow .... 


37 


Pa. 


Rep. 


1861-1863 


2. Schuyler Colfax . 










38-40 


Ind. 


Rep. 


I 863-1 869 


3, James G. Blaine . 










41-43 


Me. 


Rep. 


1869-1875 


4. Michael C. Kerr . 










44 


Ind. 


Dem. 


1875-1876 


5. Samuel J. Randall 










44-46 


Pa. 


Dem. 


I 876-1 881 


6. John W. Keifer . 










47 


Ohio 


Rep. 


1881-1883 


7. John G. Carlisle . 










48-50 


Ky. 


Dem. 


I 883-1 889 


8. Thomas B. Reed 










51 


Me. 


Rep. 


I 889-1 89 I 


9. Charles F, Crisp . 










52-53 


Ga. 


Dem. 


189I-1895 


10. Thomas B. Reed 










54-55 


Me. 


Rep. 


1895-1899 


II. David B. Henderson 








56-57 


la. 


Rep. 


1899- 



20 



APPENDIX D 

THE STATES — AREA AND POPULATION 





Became 
Member 


Area 


Population 


Electoral 
Vote 


State 


of 


Square 
Miles 




















Union 




1890 


1900 


1890 


1900 


Maine 


1820 


33.040 


661,086 


694,466 


6 


6 


New Hampshire 


1788 


9,305 


376,530 


411,588 


4 


4 


Vermont 


1791 


9,565 


332,422 


343,641 


4 


4 


Massachusetts 


1788 


8,315 


2,238,943 


2,805,346 


15 


16 


Rhode Island 


1790 


1,250 


345.506 


428,556 


4 


4 


Connecticut 


1788 


4,990 


746,258 


908,355 


6 


7 


New York 


1788 


49,170 


5,997,853 


7,268,012 


36 


39 


New Jersey 


1787 


7,815 


1,444,933 


1,883,669 


10 


12 


Pennsylvania 


1787 


45,215 


5,258,014 


6,302,115 


32 


34 


Delaware 


1787 


2,050 


168,493 


184,735 


3 


3 


Maryland 


1788 


12,210 


1,042,390 


1,190,050 


8 


8 


West Virginia 


1863 


24,780 


762,794 


958,800 


6 


7 


Virginia 


1788 


42,450 


1,655,980 


1,854,184 


12 


12 


North Carolina 


1789 


52,250 


1,617,947 


1,893,810 


11 


If: 


South Carolina 


1788 


30,570 


1,151,149 


1,340,316 


9 


9 


Georgia 


1788 


59,475 


1,837,353 


2,216,331 


13 


13 


Florida 


1845 


58,680 


391,422 


528,542 


4 


5 


Alabama 


1819 


52,250 


1,513,017 


1,828,697 


11 


11 


Mississippi 


1817 


46,810 


1,289,600 


1,551,270 


9 


10 


Louisiana 


1812 


48,720 


1,118,587 


1,381,625 


8 


9 


Texas 


1845 


265,780 


2,235,523 


3,048,710 


15 


18 


Arkansas 


1836 


53,850 


1,128,179 


i,3",564 


8 


9 


Tennessee 


1796 


42,050 


1,767,518 


2,020,616 


12 


12 


Kentucky 


1792 


40,400 


1,858,635 


2,147,174 


13 


13 


Ohio 


1803 


41,060 


3,672,316 


4,157,545 


23 


23 


Indiana 


1816 


36,350 


2,192,404 


2,516,462 


15 


15 


Illinois 


1818 


56,650 


3.826,351 


4,821,550 


24 


27 


Michigan 


1837 


48,915 


2,093,889 


2,420,982 


14 


14 


Wisconsin 


1848 


56,040 


1,686,880 


2,069,042 


12 


13 


Minnesota 


1858 


83,365 


1,301,826 


1,751.394 


9 


II 


Iowa 


1846 


56,025 


1,911,896 


2,231,853 


13 


13 



562 



Appendix D 



563 



THE STATES— AREA AND POPULATION. — Co«AwMtf</ 





Became 


Area 


Popu 


ation 


Electoral 
Vote 


State 




Square 










of 


Miles 












Union 




1890 


1900 


1890 


1900 


Missouri 


182I 


69,415 


2,679,184 


3,106,665 


17 


18 


Kansas 


1861 


82,080 


1427,096 


1,470,495 


10 


IQ 


Nebraska 


1867 


77.510 


1,058,910 


1,068,539 


8 


8 


South Dakota 


1889 


77.650 


328,808 


401,570 


4 


4 


North Dakota 


1889 


70,795 


182,719 


319,146 


3 


4 


Montana 


1889 


146,080 


132,159 


243,329 


3 


3 


Wyoming 


1890 


97,890 


60,705 


92,531 


3 


3 


Colorado 


1876 


103,925 


412,198 


539,700 


4 


5 


Utah 


1896 


84,970 


207,905 


276,749 


— 


3 


Nevada 


1864 


110,700 


45.761 


42,335 


3 


3 


Idaho 


1890 


84,800 


84,385 


161,772 


3 


3 


Washington 


1889 


69,180 


349,390 


518,103 


4 


5 


Oregon 


1859 


96,030 


313,767 


413,536 


4 


4 


Cahfornia 


1850 


158,360 


1,208,130 


1,485,053 


9 


10 


Total states 




2,784,677 


62,116,811 


74,610,523 


444 


476 



Territory 



District of Columbia 
Indian Territory . 
Oklahoma . . . 
New Mexico . . 
Arizona .... 
Alaska .... 
Hawaii .... 
Porto Rico . . . 
Philippines . . . 



Area 
Square Miles 



70 

31,400 

39,030 

122,580 

113,020 

577,390 

6,740 

3,600 

114,000 



Population 



230,392 

180,182 

61,834 

153,593 
59,620 
32,052 
89,990 



278,718 
391,960 

398,245 
195,310 
122,931 

63,441 
154,001 

957,679 
7,000,000 



APPENDIX E 

THE STATE CONSTITUTIONS 
TABLE I — METHOD OF ADOPTION (1776-1900) 





Without Popular Ratification 


With Popular Ratification 


State 


1776- 
181S 


1815- 
184s 


1845- 
1870 


1870- 
1900 


1776- 
1815 


1815- 
1845 


1845- 
1870 


1870- 
1900 














1820 




(1875) 


New Hampshire. 


1776 
1786 
1793 








,1784 
1792 






















1780 


















1842 
1818 
1821 
1844 
1838 
























1777 
1776 
1 1776 
( 1790 
J 1776 
/ 1792 

1776 










1846 


1894 

(1875) 

1873 


New Jersey 

Pennsylvania 


















1831 




1897 




Maryland 








\ 1864 
1 1867 

1862 
(1850 
/I869 

1868 

1868 

(i86s 
1868 

1868 
1867 
1868 














1872 


Virginia 


1776 

1776 
1-1776 
] 1778 
1 1790 

\ 1789 
(.1798 










1829 


North Carolina. . 










187s 


South Carolina. . 




1865 


189s 












1877 


Florida 


184s 
1819 
1817 


1865 
1865 


1885 














187s 






1890 




1832 









564 



Appendix E 



565 



THE STATE CONSTITUTIONS. — Co«/m«far 





Without Popular Ratification 


With Popular Ratification 


State 


1777- 
1815 


1815- 
1845 


1845- 
1870 


1870- 
igoo 


1776- 
1815 


1815- 
1845 


1845- 
1870 


1870- 
1900 




1812 






1898 




184s 
184s 


11852 
1 1868 
1 1866 
1 1868 
( 1864 
1 1868 
1870 

1850 

1851 
1851 
f 1848 
1 1870 
1850 
1848 

1857 
f 1846 
(1857 

1865 

1859 
1867 




Texas 






187s 
1874 






1836 








Tennessee 


1796 
fi792 

1 1799 
1802 








1834 


Kentucky 










1891 


Ohio 












Indiana 


1816 
1818 












Illinois 
























1837 


















































Missouri 




1820 










187s 


Kansas 












Nebraska 














1875 
1889 
1889 
1889 
1889 
1876 
189s 


South Dakota . . 














North Dakota. . . 
















Montana 
















Wyoming 
















Colorado 
















Utah 
















Nevada 














1864 


Idaho 














1889 
1889 


Washington 































1857 
1849 
















1879 

















The dates given above are the years in which the constitutions were 
adopted, and not the ones in which they went into force. 



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Appendix E 



569 



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571 



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58i 



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583 



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INDEX 



Abolitionists, the, i6o. 

Adams, C. F., 516. 

Adams, H. C, Science of Finance, 
quoted, 262. 

Adams, John (President), 76, 121, 
126, 515 ; letter of, 104. 

Adams, John Q. (President), 139, 
263, 441. 

Adams, Samuel, 73. 

Administration : centralization of 
national, 284; decentralization of 
state, 356, 387-389, advantages 
of same, 390 ; state boards of, 359 ; 
city boards of, 410. 

Administrative law, 23, 208. 

Agriculture, department of, 312. 

Alabama : state of, 136 ; government 
in, 376, 426. 

Alabama claims, 517. 

Alaska: purchase of, 273; govern- 
ment of, 521. 

Albany plan of Union, 63. 

Alien Act (1798) , 126. 

Almshouse, the county, 398. 

Amendment. See Constitution. 

American Association, the, 75. 

American System, 141, 501. 

Andros, Edmund, 62. 

Angevin kings, 34-35. 

Anglo-Saxons. See England. 

Annapolis Conference, the, 92. 

Anti-federalists, the, 100. 

Anti-trust laws : of the states, 184, 508- 
509; of the United States (1890) 
184, SOS- 
Appointments : historical, 237, 290, 
293 ; by the President and Senate, 
237, 291, 294-295, 334; in cities, 
411 ; in all governments, 452. 



Apportionment of United States rep- 
resentatives, 246-247. 
Aristocracy, definition of an, 7. 
Army, control of, 270. 
Assessors, county, 396. 
Attorneys, county, 396. 
Attorney-general, duties of, 312. 
Attorney-generals, state, 358. 
Auditors : county, 395 ; city, 409. 
Australian ballot, 188, 428-429. 

Bagehot, Walter, reference to, 330. 

Ballot : history of the, 428 ; the Aus- 
tralian, 428-429. 

Bank, national : the first, organized, 
123; the second, chartered, 136; 
controversy over second, 145. 

Banking system, national, 492, 493. 

Bankruptcy laws, 201, 278. 

Bicameral legislatures in Europe and 
America, 225. 

Bills of Rights : early state, 79 ; in 
national Constitution, 102, 457- 
461 ; in state constitutions, 349, 

457. 461-464- 

Bills, distinguished fi-om orders and 
resolutions, 229. 

Bimetallism, 486-490. 

Blackstonc's Comtnentaries, 14. 

Blaine, James G., 442, 443. 

Bland-Allison Bill, 186, 490. 

" Body of Liberties," the, 50. 

Bonds, sale of, 269. 

Boss, the political party, 142, 447. 

Boston Tea Party, the, 74. 

Bryan, William J., 443, 444. 

Bryce, James, The American Com- 
monwealth, references to, in, 255, 
292. 



^ The index covers only the numbered sections of the text, all references being to 
pages. Where the reference covers more than three pages, the Topical Analysis 
should be consulted. 



589 



590 



Index 



Bundesstaat, a, 8. 

Burgess, John W., quoted, 159, 215, 

Burr, Aaron, 127. 

Cabinet government: nature of, 
16, 40, 328 ; development of, 40 ; ad- 
vantages of, 329 ; disadvantages of, 
330- 

Cabinet, the American : organized, 
119; composition now, 303 ; mem- 
bers of, in Congress (proposed) 338. 
See Topical Analysis, chap. XV. 

Calhoun, John C, 144. 

California : admission of, i6r ; gov- 
ernment of, 406, 407, 425, 467. 

Campaign, the political: first used, 
142 ; present methods, 287. 

Canning, George, 139. 

Carolina, colonial government of, 
47. 56. 

" Carpet bag" government, 176. 

Caucuses, use of party, 230, 234. 

Census bureau, the, 310. 

Centralization in government: in 
general, 16, 198; in the United 
States, 198-200. 

Charities, public, 397-399. 

Charles I, 48. 

Charters: colonial, 44, 45; of 1606, 
45 ; of Virginia, 46 ; of New Eng- 
land, 49-51 ; importance of, 53. 

Charters, city, 405-407. 

Checks and balances in the United 
States government, 16,103, ^04. 33i- 

Cherokee Case, 144. 

Chisholm v. Georgia, 120. 

Church and State : in England, 33 ; 
in America, 49; final separation 
of, 140. 

Circuit Court, national, 120, 325. 

Circuit Courts of Appeals, 324. 

Citizen of a state, rights of, 216, 217. 

Citizen of United States: status of, 
215; privileges of, 216. 

Citizenship: in ancient and modern 
States, 9; in United States, dual 
character of, 212, controversies 
over, 213; duties of, 525-530. 

City government: in England, 37; 
in America before i860, 152. At 
present, see Topical Analysis, chap. 
XXI. 

City State, 7. 



Civil Rights Bill, the, 172, 214. 
Civil Rights Cases, the, 175. 

Civil Rights in the United States. 
See Topical Analysis, chap. XXI V. 

Civil service reform, 189, 295, 411; 
national Commission of, 313. 

Civil War: causes of, 164; begin- 
nings of, 167 ; progress of, 168-170, 
516; influences of, 171-182. 

Claims, court of, 325. 

Clay, Henry, 141, 263, 441, 442. 

Clerks, county, 395. 

Cleveland, Grover (President), 189, 
297. 443. 448. 502, 519. 

Coast defence, 272. 

Coinage, 270, 279, 489, 490, 492-494. 

Colonies : see Topical Analysis, chap. 
Ill ; control of present, by United 
States, 190, 520-523. 

Columbia, District of: slavery in, 
160 ; government of, 274. 

Comity, interstate, 369. 

Commerce : need of national control 
in 1787, 99, 276; development of, 
after Civil War, 217; control of, 
by Congress, 276-278. See Rail- 
ways. 

Commercial treaties, 277. 

Commissioners, county, 52, 394, 395, 

Committees, conference, 230. 

Committees, congressional: in the 
Senate, 235, 236; in the House, 
254; criticism of, 255; advantages 
of, 256. 

Committees of the whole : historical 
use of, 94-96, 297 ; at present, 257. 

Committees of Correspondence, 73. 

Committees, political party: work of, 
444-445 ; of the nation, 445 ; of the 
state and localities, 446. See also 
Machine. 

Commons, House of, 35, 36, 40, 328- 
329- 

Compromises : need for, 96 ; over 
composition of Congress, 96 ; over 
counting of slaves, 97 ; over slave 
trade and navigation acts, 98 ; over 
assumpdon of state debts, 122; 
over slavery in Missouri, 137 ; over 
slavery (1850), 161. 
Confederacy, character of a, 7. 
Confederacy, Southern, 164, 168, 516. 
Confederation, Articles of, 80-83. 



Index 



591 



Confederation, the : formation of, 80 ; 
character of, 81; defects of, 82; 
failure of, 83 ; revenue under, 269. 

Confederation, the New England, 62. 

Congresses, early: Albany (1754), 
63; Stamp Act (1765), 72; First 
Continental (1774), 74; Second 
Continental (1775), powers exer- 
cised, 75 ; authority of, 76 ; de- 
clares independence, 77. 

Congress of the Confederation : com- 
position and powers of, 81 ; decay 
of, 82; lack of financial power of, 
83 ; position regarding constitu- 
tional convention, 92; end of, 102. 

Congress, United States; composi- 
tion of, in Virginia plan, 95 ; present 
composition of, 224 ; powers of, in 
outline, 107, 205-207; limitations 
upon powers of, no, 210, 211; im- 
plied powers of, 123, 139, 206 ; and 
the judiciary, 321-322, 338, 339; 
and the President, 171-173, 191, 
270, 296-299, 332-338. See also 
Topical Analysis, chaps. XI-XIII. 

Congressmen : privileges of, 227 ; 
pay of, 228. 

Conkhng, Roscoe, 443. 

Connecticut : colony of, 50, 51, 54, 56 ; 
state of, 79, loi, 140 ; government 

in. 355. 357. 425- 

Constitutional law, 23. 

Constitution : general nature of a, 
11; distinction between a written 
and unwritten, 11 ; relation of a 
written to its unwritten, 12, 192- 
193 ; development of a written in 
America, 53-55, 64, 79, 93-100. 
See Unwritten constitution. 

Constitution of the United States: 
formation of, 93-100; ratification 
of, 100-102 ; character of, 102-104 ; 
national theory of, 104, 105, 145; 
compact theory of, 105, 164; pro- 
visions of, 106-110 ; sources of, iio- 
III ; method of amendment of, 99, 
219; first ten amendments of, 
102; XI amendment of, 120; XII 
amendment of, 127; XIII amend- 
ment of, 174; XIV amendment of, 
174, 213-215, 246; XV amendment 
of, 174; loose construction of, 123, 
139, 205; strict construction of, 



123; interpretation of, 316-319; 
rights guaranteed by, 457-461. 

Constitutions of the states : first, 78- 
80; second period of, 131; third 
period of, 147; historical develop- 
ment of, 346-347 ; process of 
forming, 347; amendment of, 
348 ; contents of, 348. 

Consular service, 305. 

Contracts: interstate law regarding, 
370 ; non-impairment of, 139, 461, 

Controller of the Currency, the, 310. 

Controllers, state, 358. 

Conventions, nominating : first used, 
141; national, 287, 447-448; state 
and local, 449. 

Conventions, constitutional : of 1787, 
91-100 ; of the states, 79, 346-348. 

Copyright, 309. 

Coroners, county, 396. 

Corporations: consolidation of, 183, 
507; control of, 184, 506-509; di- 
verse state laws regarding, 368. 

Corporations, public, definition of, 

392. 394- 

Corporation taxes, 368, 480. 

Council, municipal : history of, 405 ; 
organization of, 407; powers of, 
408. 

County government: in England, 
32, 36; in colonial America, 45, 
48, 52; changes in, after 1800, 152; 
home rule in, 389; at present, 394- 
396. 

Courts. See Judiciary. 

Crime : diversities in state laws re- 
garding, 368 ; methods used for 
punishment of, 378-381. 

" Crime of 1873," 186, 490. 

Criminal law, 23. 

Crown. See King. 

Cuba, relations with, 189. 

Currency: before Civil War, 181; 
since Civil War, 181, 186. See 
Topical Analysis, chap. XXVI. 

Custom as a form of law, 21. 

Customs duties, as a tax, 475. See 
also Tariffs. 

Dartmouth College Case, 

139- 
Debts, public: debate upon, 122; 
municipal, 417. 



592 



Index 



Decjaratory act, the, 72. 
Declaration of Independence, 76-78. 
Declarations of Rights (1765) 72, 

(1774) 74. 
Delaware: colony of, 55; state of, 
loi; government in, 346, 348, 361, 

425- 

Democracy: definition of, 7; differ- 
ence, between a pure and a repre- 
sentative, 15; modern develop- 
ment of, 27 ; increase of, in United 
States, 127, 13s, 147-153, 186-187, 
194, 346-347. 432-435- 

Democratic party : before 1861, 162, 
164, 440, 441 ; since 1861, 442-444. 

Democratic-Republican party, 124, 
125, 127. 130, 136, 440. 

Departments. See Government ; 
Congress ; President ; State ; Treas- 
ury, etc. 

Diplomacy: of the past, 515-520; 
of the future, 220, 515. 

Diplomatic service : 304 ; reform of, 

305. 
Dispensaries, free, 398. 
Dispensary, the South Carolina, 376. 
District of Columbia, 160, 161, 274. 
District courts, national, 325, 
Divine right theory of the State, 4. 
Divorce laws, diversities in, 367. 
Docks, municipal ownership of, 415, 
Oouglas, Stephen A., 162. 
Dred Scott Case, 163. 

Education: and democracy, 151; 
national commissioner of, 310; 
state superintendents of, 358, 373 ; 
state boards of, 372 ; county boards 
of, 373; county superintendents 
of, 396; city boards of, 373, 410- 
411. 

Educational land grants, 151, 308, 
371. 374- 

Edward the Confessor, 33. 

Egbert, King, 32. 

Elastic clause, the, 108, 280-281. 

Elections : registration for, 427 ; bal- 
lots used in, 428; voting at, 429- 
430. 

Elections, presidential : of 1800, 127, 
262; of 1824, 263; of 1828, 143; 
of 1856, 162 ; of i860, 164 ; of 1876, 
176 ; of 1880, 442 ; of 1888 and 1892, 



185, 443; of 1896, 186, 443; of 
1900, 444. 

Electoral " College," the, 99, 288. 

Electoral Commission, 176, 289. 

Electoral Count Bill, 289. 

Electric lighting of cities, 414. 

Elmira plan of reforming criminals, 
380. 

Emancipation : before 1787, 86, 103 ; 
before 1845, 159; the Proclama- 
tion of, 169; by XIII amendment, 
174. 

Embargoes, failure of, 129. 

Eminent Domain, use of, 412, 463. 

England : constitutional development 
in, 31-41; and the colonies, 58- 
59, 68-77; constitution of, com- 
pared with American system of 
government, 64-65, 327-332; dip- 
lomatic relations of, with United 
States, 515-519. 

Equality, kinds of, 24. 

Equalization, boards of, 480. 

Equity: courts of, 360, 511; nature 
of, 465. 

Evolution as a process of growth, 25. 

Ex post facto laws, no, 458. 

Executive councils, state, 358. 

Executive department, work of the, 

17- 
Executive departments : see Topical 

Analysis, chap. XV; relation to 

Congress, 332. 
Executive sessions of the Senate, 

226. 

Factory legislation, 510. 

Federal State: definition of a, 8; 
United States an example of, 102, 
The American : maintained by the 
Constitution, 103, 200; a century's 
changes in, 191, 199, 200, 218 ; inter- 
dependence of nation and states in, 
109, 211; permanence of, 218-220. 

Federalists, the : efforts to ratify Con- 
stitution, 100 ; later organization of, 
125, 128, 439, 440. 

Federalist, the, loi. 

Feudal State, a, 7. 

Filibustering, 230, 237. 

Finance: national; under Confeder- 
ation, 82-83; methods of Con- 
gress, 258-261; reform of same, 



Index 



593 



261-262 ; sources of revenue, 474- 
477; state, 354, 382; school, 374; 
city, methods, 408, 409, 434; data, 
416-417. 

Fire departments, the city, 410-41 1. 

Fish Commission, national, 313. 

Fish, Hamilton, 517. 

Florida : acquisition of, 273 ; govern- 
ment in, 346. 

Food, inspection of, 413. 

Foreigners : immigration of, 146 ; in 
our cities, 404. 

France : Constitutions of, 5, 13 ; 
Senate of, 232. 

Franchise, the. See Suffrage. 

Franchises, municipal, 412, 413, 415. 

Franklin, Benjamin, 63, 76, 93, 515. 

Freedmen's Bureau, 171. 

" Free-silver," 443. 

" Free-trade," 443, 498, 500. 

Fugitive slave act : of 1793, 159 ; of 
1850, 161, 164. 

Gadsden purchase, 273. 

Gallatin, Albert, 137. 

Garfield, James A. (President), 442, 
443. 518. 

Gas supply of cities, 414. 

General property tax, the, 382, 416, 
478-480. 

Geneva award, the, 517. 

George, III, 40, 69-77, 293. 

Georgia: colony of, 55, 74; state of, 
loi, 120, 144, 149, 172, 188, 225 ; 
government in, 376, 394, 433. 

Germany, Bundesrath of, 233. 

Gerrymandering, 249. 

Government : the departments of, 
13 ; the forms of, 15-17 ; theories 
concerning the office of, 18 ; con- 
stituent functions of, 19; minis- 
trant functions of, 19, 382, 406; 
limits of action of, 20; relation of 
departments of, to each other, 327- 

332- 
Governor, colonial : powers of, 55 ; 

contests of, with assemblies, 57. 
Governor, state: position in early 

times, 80, 291 ; present powers of, 

357; qualifications and election 

of, 359. 
Grant, Ulysses S, (President), 173, 

189, 422, 448. 
2Q 



Great Britain. See England. 

Greenback party, 444. 

Greenback party. See Notes, U. S. 

Habeas Corpus, writ of: in Magna 
Charta, 34; in 1600, 37; law of 
1679, 38; suspension of, general, 
no, 211, 459; during Civil War, 
169, 173. 340- 

Hadley, Arthur T., quoted, 504. 

Hale, Edward E., reference to, 530. 

Hamilton, Alexander: before 1789, 
91, 93, 100, 102, 317; as Secretary 
of the Treasury, 119, 121, 123, 489; 
as party leader, 124, 439. 

Hanoverian kings, 40-41, 58, 71 etseq. 

Harrison, Benjamin (President) , 308, 

443- 

Hartford Convention, the, 130. 

Hawaii : annexation of, 190, 273 ; 
government of, 522. 

Hayes, Rutherford B, (President), 
442, 490, 518. 

Health officer, city, 413. 

Henry, Patrick, 72, 93, loi. 

Hinsdale, Burke A., quoted, 229. 

Homestead Act, 308. 

Homestead exemption laws, 151, 466. 

Hospitals, public, 398. 

House of Representatives (national) : 
proposed representation in, 96; 
composition of, 97, 245-246 ; pow- 
ers of, in outline, 106; first or- 
ganization of (1789), 119; special 
powers of, 258-263. See Topical 
Analysis, chap. XH. 

Houses of Representatives, state: 
composition of, 351 ; special pow- 
ers of, 355. 

Howard, George E., reference to, 393. 

Idaho, government in, 427, 467. 

Illinois: state of, 136; proportional 
representation in, 249, 431 ; local 
government in, 393. 

Immigration, foreign: influence of, 
146; restrictions upon, 311. 

Impeachment: of President John- 
son, 173; process of, 238; useless- 
ness of, 334 ; method in states, 359. 

Implied powers : Hamilton upon, 
123; Supreme Court upon, 139, 



594 



Index 



Inauguration, the presidential, 291. 
Income taxes, 476-477, 
Independence, the Declaration of, 

76^8. 
Indian policy of the United States, 

309- 
Indiana, state of, 136; government 

in. 357- 
Individualist theory of government, 

18. 
Industrial Commission, National, 

185, 313- 
Industry: before Civil War, 181; 

after Civil War, 181-183. 
Inheritance laws, 61 ; interstate rules 

regarding, 370. 
Inheritance taxes, 477, 478. 
Initiative, the, 187, 433-435. 
Insane, care of, 396. 
Interior, department of, 307-310. 
Internal improvements, 137, 277, 

278, 503. 
International law, 23, 
Interstate Commerce Act, 183, 504. 
Interstate Commerce Commission, 

183, 278, 313, 505. 
Iowa, government in, 348. 
Iredell, Justice, 120. 
Italy, dispute with (1891), 203. 

Jackson, Andrew (President), 130, 
143, 144, 14s, 263, 340, 440. 

Jails, local, 380. 

Jay, John, 100, 124, 515. 

Jay's treaty, 124. 

Jefferson, Thomas (President) : 
before 1800, 76, 86, 93, 123-125, 
159. 439; ^s President, 127-129, 
262, 340, 440. 

John, King, 34. 

Johnson, Andrew (President), 171- 

173. 239- 
Judges, national, 109, 320, 
Judges, state, 149, 361. 
Judicial department, functions of, 18. 
Judicial interpretation, rules of, 319. 
Judiciary act : of 1789, 120, 319 ; of 

1801,339; of 1891, 320. 
Judiciary, English, 36. 
Judiciary, municipal, 411. 
Judiciary, state: early, 80; creation 

of an elective, 149; relation to 

national courts, 207, 322; scope 



of work of, 360 ; system of courts 
of, 360; judges of, 361. 

Judiciary, United States : proposed 
imperfect jurisdiction of, 98; or- 
ganization of, 108; outline of 
powers of, 109; first organization 
of (1789), 120; important decisions 
of, 120, 121, 138, 139, 144, 163, 175, 
281, 319, 339, 491; and other de- 
partments, 321, 338-340. See Topi- 
cal Analysis chap. XVI. 

Jury: trial by, 34, 460, 464, 466; 
merits and demerits of, 467. 

Justices of the peace : historical, 37, 
48, 149 ; at present, 360, 361, 394. 

KANSAS: territory of, 162; govern- 
ment in, 426. 

Kansas-Nebraska Bill, the, 162. 

Kentucky: state of, 86; resolutions 
of, 126, 127, 318. 

King's Council, 33. 

King, English: contest with people, 
34. 35. 36. 39 ; contests with colo- 
nies, 54, 58, 69-77. 

" Know-nothing " party, 280, 442. 

" Ku Klux Klan," the, 176. 

Labor : national department of, 312 ; 
state bureaus of, 511; legislation 
regarding, 151, 509-511. 

Land policy of United States, 308. 

Land cessions of the states, 84, 272. 

Law: growth of, 21; relation to lib- 
erty, 21, 23 ; relation to govern- 
ment, 22 ; kinds of, 23. 

Legal Tender Cases, 175, 281. 

Legislature : the proper functions of, 
17 ; the colonial, 55-58. 

Legislature, the state: powers of 
(1776), 80, (1901), 354, 386; re- 
strictions upon, 148, 186, 352-354, 
389; sessions of, 351; method of 
legislation in, 352, 354 ; defects of, 
355-356 ; power of, in city affairs, 
405, 406. 

Libel, law of, 459, 463. 

Liberty, civil, political, religious, and 
industrial : in general, 23 ; in Eng- 
land (1600) , 37-38 ; in the colo- 
nies, 59-62 ; increase of, 151 ; at 
present, see Topical Analysis, chap. 
XXIV. See also SviST&ge. 



Index 



595 



Licenses, conditions of granting, 376- 

377- 
Lieutenant-goveraor of the states, 359. 
Lincoln, Abraham (President), 164, 

169, 171, 234, 292, 340, 530. 
Liquor problem, the, 375-378. 
Local government: in England, 31, 

32, 33, 36 ; tj^es of, in America, 45, 

390. See Topical Analysis, chap. 

XX ; also Town ; County ; and City, 
Locke, John, 47, 56. 
Lodging-houses, city, 399, 415. 
" Log-rolling," 230; 
Lords of Trade, 55, 56, 58, 318. 
Lords, House of, 35, 36, 232. 
Louisiana: constitution of, 188, 289, 

346. 349, 426 ; parish of, 394. 
Louisiana purchase, the: 127, 273; 

constitutionality of, 128; influence 

of, 128-130; slavery in, 138, 160, 

162, 163. 
Lynchings, 381. 

Machine, the political: develop- 
ment of, 142; character of, 446, 
447 ; work of, 447, 449, 450, 452. 

McConachie's Congressional Com- 
mittees, quoted, 252. 

McCulloch V. Maryland, 139. 

Madison, James (President), 86, 92, 
93, 94, 100, loi, 102, 137. 

Magna Charta, granted, 34. 

Maine: admission of, 138; govern- 
ment in, 358, 425. 

Maine, destruction of the, 190. 

McKinley, William (President), 296, 

297. 443. 444. SOI. 518. 

Marbury v. Madison, 121, 319. 

Marriage laws, diversities in, 367. 

Marshall, John, C, y., loi, 120, 121, 
139, 144, 340. 

Maryland : colony of, 47, 57 ; refuses 
to ratify Articles of Confederation, 
81,84; ^s state, loi, 140; govern- 
ment in, 348. 

Massachusetts : colony of, 49, 50, 51, 
56, 57. 63, 72, 73. 74. 78 ; state of, 79, 
87, 140, 347; ratifies Constitution, 
loi ; present government in, 348, 
358, 374, 425. 428. 

Maximilian, Emperor, 518. 

Mayors : former position of, 152, 405 ; 
two kinds of, 408-409. 



Measures, standards of, 279. 
Mechlenburg Resolutions, 76. 
Message : the presidential, 297, 335 ; 
the gubernatorial, 357 ; the special, 

297. 335- 

Mexico : war with, 160 ; land cession 
by, 161, 273 ; Maximilian in, 518. 

Michigan : financial experiments of, 
150 ; government in, 348, 462. 

Militia : organization of, 271 ; use of, 
184, 293. 

Milligan Case, the, 169. 

Minnesota, government in, 406, 407, 
467. 

Mississippi : state of, 172 ; govern- 
ment in, 187, 346, 425. 

Missouri : admission of, 137-138 ; city 
charters in, 406, 407. 

Missouri Compromises : 137, 138 ; re- 
peal of, 162 ; Supreme Court on,i63. 

Monarchies, 7, 15. 

Money. See Coins; Currency; and 
Paper money ; also Topical Analy- 
sis, chap. XXVL 

Monometallism : meaning of, 488 ; 
in the United States, 490, 492. 

Monroe, James (President), 139, 

143- 
Monroe Doctrine : original aim of, 

139; history of, 518-519. 
Montana, government in, 467. 
Montesquieu's Esprit de Lois, 13. 
Montford, Simon de, 34. 
Morris, Gouverneur, 93. 
Moses, Professor, reference to, 529. 
" Most favored nation " clauses, 277. 

Napoleon 1, 124, 128, 

Napoleon III, 518. 

Nation, definition of a, 3. 

Nation State, definition of a, 7. 

National committees of political par- 
ties, 445-446. 

National Conventions : organization 
of, 447 ; work of, 287, 448. 

Nationality: what comprises, 3, 115; 
development of, in modem times, 
27 ; in America (1760) , 70 ; contest 
of, with particularism, 80, 84, 95-96, 
100-102, 117, 118, 145, 198-199; 
three periods of development of, 
116; increase of, after 1810, 129, 
135-137. 139. 145-147. 168, 181, 199 ; 



596 



Index 



consult also Topical Analysis, 

chaps. VI-IX. 
Naturalization: history of laws of, 

279; two kinds of, 280; process 

of individual, 218. 
Natural theory of the State, 5; ex- 
hibited in American history, 6. 
Navigation acts : British, 60, 71 ; 

compromise over American, 98, 

276. 
Na\'y: need of a, 271; department 

of the, 311. 
Nebraska, government in, 234, 393, 

433- 

Neutrality, Proclamation of, 124, 520. 

Nevada, government in, 467. 

New England Confederation, the, 62. 

New Hampshire, state of, 78, 86, loi. 

New Jersey : state of, loi ; govern- 
ment in, 357. 

New Jersey plan : provisions o^ 95 ; 
rejection of, 96. 

New York: colony of, 63, 73; state 
of, 81, 83, 92, 140, 503; ratified 
Constitution, loi; government in, 

345. 348, 373. 392- 

Nominations : presidential, 287, 448 ; 
state and local, 449; importance 
of, 452 ; direct, 453. 

North Carolina : state of, 102, 105 ; 
government in, 188, 357, 359, 426. 

Notes, United States, 175, 270, 491. 

Nullification : threatened in Ken- 
tucky, 127; used in Georgia, 144; 
by South Carolina, 144-145. 

Office-holders, qualifications of, 
428. 

Ohio: state of, 136, 149; govern- 
ment in, 348, 376. 

Olney, Richard, 519. 

Ordinance of 1787, the, 85, 159, 273. 

Ordinary, the, in Georgia, 394. 

Oregon territory, 161, 273. 

Osgood, Professor, reference to, 53. 

Otis, James, 71. 

Paine, Thomas, 76, 91. 
Paper money, 83, 175, 270, 491-492. 
Pardon, executive power oi, 299, 357. 
Paris, the Declaration of, 520. 
Parish government : in England, 34, 
37 ; in Virginia, 47. 



Parliament: beginnings of, 34, 35, 
225; powers of, 36, 40, 41; and 
the colonies, 59, 70. 

Pariiamen tar)- government. &« Cabi- 
net government 

Particularism. See Nationality. 

Party, the political, in the United 
States. See Topical Analysis, 
chap. XXIII ; also under names 
of parties. 

Patents, process of obtaining, 309. 

Penal codes, 464, 

Pendleton Act, 189, 296. 

Penitentiaries, 380. 

Pennsylvania: colony of, 52, 55, 56, 
60 ; state of, loi, 225. 

Pension policy of the United States, 
308. 

People's party, 443, 444. 

Philippines: cession of, 190, 273; 
rebellion in, 190; government of, 
522. 

Piracy, punishment of, 280. 

Plutarch, story from, 525. 

" Pocket veto," the, 231. 

Police department, city, 410-411. 

Political societies, chaiacteristics o^ 
I, 2. 

Porto Rico : cession of, 190, 273 ; 
government in, 522. 

Post-ofiice department, 306-307. 

President, the : nomination and elec- 
tion of, 99, 262, 286-290, 447-449; 
powers of, in outline, 108 ; changes 
in power of, 143, 284; military 
power of, 169, 292, 293, 335; and 
Congress, 171-173, 191, 270, 296- 
299, 332-338 ; and the Senate, 237- 
239, 294, ^, 334; and the courts, 
169, 340. .Scf* also Topical Analy- 
sis, chap. XIV. 

Presidential government: character 
of, 16, 330 ; advantages of, 331. 

Previous question, the : lack of, in 
the Senate, 237 ; in the House, 251. 

Primarj', the : character of, 450 ; and 
the machine, 447, 450; reform oi, 
450-451 ; problem of, 451. 

Prisons, method of state, 379. 

Private law, 23, 208. 

Privy Council: before 1600, 33; 
orders fi'om, 36, 58. 

Probate, courts of, 360. 



Index 



597 



Prohibition : state, 377 ; party, 444. 
Proportional representation, 249, 430- 

432. 
" Protection," 499-502. 
Public administrators, of the county, 

396. 
Public domain : creation of, 84 ; en- 
largement of, 273 ; government of, 

85, 274, 520-523. 
Public law, kinds of, 23. 
Public safety, (city) department of, 

410. 
Public works: state superintendent 

of, 358 ; (city) department of, 40. 
Puritans, institutions and ideas of, 

48-49. 

Quakers, ideas and institutions of, 
52-53. 

Railways : value of, to nationality, 
147 ; increase of, 182, 503 ; control 
of, 183, 504, 506 ; state commis- 
sions of, 183, 505-506; national 
commissioner of, 310; city owner- 
ship of, 415. 

Randolph, Edmund, 94. 

" Reciprocity," 277, 501, 502. 

Reconstruction : problem of, 170 ; 
theories concerning, 170; means 
finally used in, 172. 

Recorders, county, 396. 

Referendum, the, 187,418,432-435. 

Reform acts of 1832, 1868 and 1884 
(English), 41. 

Reformatories, 380. 

Religious liberty, 38, 86, 459, 462. 

Religious organizations, national, 
formed, 85. 

Removals from office : historical, 
173. 295 ; at present, 295, 357, 409. 

Representation, 32, 72, 247-248. 

Republican party, the, 162, 441-444. 

Residuary powers, 204. 

Revenue. See Finance and Taxa- 
tion. 

Revolution as a process of growth, 
25- 

Revolution, in England (1688), 39. 

Revolution, the American: causes 
of 68-75 ! progress of war during, 
75-77; effects of, 69, 77-81, 515- 
516. 



Revolution, the French (1789), 27, 

124. 
Rhode Island: colony of, 51, 56; 

state of, 79, 83, 93, 102, 105, 289; 

government of, 357, 426. 
" Rider," the, 298, 333. 
River and Harbor improvement, 279. 
Roads, care of, 399. 
Rousseau, J. J., 5. 
Rules, Committee on, 251-253, 264. 

Salaries : of congressmen, 228 ; of 
the President, 286; of national 
judges, 320; of state officials, see 
Appendix G. 

San Francisco, 433. 

Schools, public, 371-375. See also 
Education. 

Secession : forbidden in North-west 
territory, 85; threatened in New 
England, 137; actual secession in 
the South, 164 ; failure of southern, 
168 ; improbability of future, 191, 
201. 

Sedition Act (1798), 126. 

Selectmen, the New England, 51, 392. 

Senate, the national : disputes over 
composition (1787), 96; organi- 
zation and special powers of, in 
outline, 106 ; early methods of, 120 ; 
and the House of Representatives, 
240-241, 263 ; and the President, 
see President. See also Topical 
Analysis, chap. XI. 

Senates, the state: composition of, 
350; special powers of, 355. 

Senators : proposed method of elec- 
tion of (1787), 98 ; election of, 233- 

235. 356. 
" Senatorial courtesy," 237, 294. 
Sewage, disposal of, 413. 
Seward, William H., 516, 518. 
Shay's rebellion, 87. 
Sheriff, 37, 48 ; county, 395. 
Sherman, Roger, 76, 93. 
Sherman Silver Act, 35, 186, 490. 
Shire. See County. 
Silver, laws relating to, 186, 486-490. 
Silver Republican party, 444. 
" Slate," use of a, 449, 450. 
Slaughter House Cases : 175, 216 ; 

significance of decision in, 214- 



598 



Index 



Slave trade, 98. 

Slavery: general history of, 25; in 
the colonies, 62 ; in the convention, 
97, 98, 158; as an issue in state 
admission, 137 ; in Missouri, 137- 
138, 160; development of, in the 
South, 158 ; in the territories, before 
1845, 159; after 1845, 161-164; 
abolition of, 169, 174. 

Social Democratic party, 444. 

Socialist Labor party, 444. 

Socialistic theory of government,i8. 

South Dakota, initiative in, 433. 

Sovereignty: determines kinds of 
States, 7; characteristics of, 9; 
classes of powers of, 10 ; disputes 
over location of, in United States, 

10, 104-105, 145, 164, 191 ; in Arti- 
cles of Confederation, 8i. 

South Carolina: colony of, 47, 56; 
state of, loi, 165 ; nullifies tariff, 
144, 500 ; secedes, 164 ; government 
of, 187, 289, 346, 367, 376, 426. 

Spanish American War, the, 190. 

Speaker of the House of Representa- 
tives, 253-254. 

Special assessments, 481. 

Special legislation, forbidden, 148, 
186, 353, 389. 

"Spoils system": introduced, 143, 
152 ; development of, 295. 

Staatenbund, a, 8, 165. 

Stamp Act, the, 71. 

Stamp Act Congress, the, 72, 

State : definition of a, 2 ; two uses of 
the term, 2 ; distinguished from na- 
tion, 3; three theories concerning 
origin of, 4-5 ; as an organism, 6, 

11, 14; kinds and forms of the, 7; 
characteristics of a modern, 9 ; re- 
lation of its government to a, 14, 
24 ; mortality of, 26. 

State, department of: under the Con- 
federation, 118 ; reorganized in 
1789, 119; present duties of, 304- 
306 ; commonwealth secretaries of, 

358. 
States (commonwealths) : sphere of 
activity of, 208-209, 366-383; re- 
strictions upon, under Confedera- 
tion, 81, in national Constitution, 
109, 210; relation of, to nation, 344 ; 
uniformities and diversities among. 



345, 366-371 ; constitutions of, 346- 
350 ; central governments of, 350- 
361 ; local government of, 386-400. 

States: admission of new, 85, 313; 
limitations upon, 275; congres- 
sional interference with, 275. 

State sovereignty, 8i, 163, 164, 165, 
191. 

Stevens, Thaddeus, 170. 

Stimson, F. J., reference to, 345. 

Streets, care of city, 412. 

Strikes : presidential interference 
with, 184, 293; prevention and 
control of, 185, 511. 

Stuart kiiigs and English people, 39- 
40. 

Subsidies, to develop commerce, 277, 
278, 503. 

Succession, presidential, 290. 

Suifrage : in England (1600) , 37, 38 ; 
in colonial times, 50, 52, 59 ; move- 
ment toward universal, 86, 130, 140, 
187, 194, 423-424; recent restric- 
tions of, in South, 187, 425-426 ; as 
a means of municipal reform, 417 ; 
present requirements for, 425 ; spe- 
cial tests for, 187, 425 ; woman, 188, 
426. 

Sumner, Charles, 170. 

Supervisors, boards of, 52, 392. 

Supreme Court, the. See Judiciary, 
U.S. 

Surveyors, state, 358. 

Taney, Roger, B., C. J., 163, 340. 

Tariffs : under Confederation, 83, 84 ; 
early national, 121, 500; from 1816 
to i860, 144, 500; since i860, 185, 
501-502; campaigns on the, 442- 

443- 

Taxation: internal, in colonies, 70- 
74; under Confederation, 83; un- 
der Federalist rule, 121-122 ; during 
Civil War, 182 ; general history of 
national, 474, 476; general power 
of, under Constitution, 207, 268; 
under state constitutions, 463, See 
also Topical Analysis, chap. XXV. 

Teachers, preparation and selection 

of, 374- 
Tennessee, state of, 172. 
Tenure of Office Act, the, 173, 295. 
Territorial, growth, 128, 161, 190,273, 



Index 



599 



Territories : congressional control 
over, 272-274, 521; presidential 
control over, 299, 336, 521-522; 
government of organized, 274, 521 ; 
government of unorganized, 274, 
520-523. 

Texas : annexation of, 160, 273 ; state 
of, 172. 

Texas v. White, x^<,. 

" Third term tradition," 285. 

Tocqueville, Alexis de, reference to, 

390- 
Town government: in Saxon Eng- 
land, 32; in colonies, 45, 51, 52; 
in the west, 151 ; at present, 391- 

393- 

Town meeting, 51, 391. 

Townshend Acts, 72. 

Township. See Town. 

Treason, punishment of, 280, 460. 

Treasurers : state, 358 ; county, 396. 

Treasury, department of : under 
Confederation, 119; reorganized 
(1789), 119; bureaus of, 310. 

Treasury, Secretary of : report of, to 
Congress, 260; powers of, 269, 333. 

Treaties, the making of, 237, 298, 334. 

Treaty, the : of 1783, 515 ; with Prus- 
sia (1785), 520; with England 
(1794), 124; Clayton-Bulwer, 517; 
of Washington, 517; with Spain 
(1898), 190. 

Trent afiFair, the, 516. 

Trevett v. Weeden, 318. 

Trustees, school, 373, 392. 

Trusts. See Corporations. 

Tudor kings, government under, 
35-39- 

Unconstitutional legislation, 

55. 317-319- 

Unwritten constitution: what con- 
stitutes, 11; of the United States, 
12, 192, 193. 

Utah, government in, 427, 467. 

Venezuela dispute, the, 519. 
Vermont, state of, 86; government 

in, 355. 357. 3S8. 

Vestries : in England, 37 ; in Vir- 
ginia, 47. 

Veto, the : in the colonies, 55, 56 ; 
lack of, in first state constitutions, 



80; in the Virginia plan, 94; of 
the president, 231, 297, 333 ; of 
the state governors, 298, 354, 357; 
of city mayors, 408. 

Vice-president, the : qualifications 
and powers of, 235, 290; election 
of, 239, 287-290. 

Villages, incorporated, government 
of, 396. 

Virginia plan : resolutions of, 94 ; ac- 
ceptance of, by committee of the 
whole, 96 ; changes in, 98. 

Virginia : colony of, 46-48, 54, 57, 59, 
62, 72; state of, 79, 81, 172, 275; 
ratifies Constitution, loi ; resolu- 
tions of (1798), 126; government 
in, 345. 348. 394. 

War, department of : under Con- 
federation, 119; reorganized, 119; 
at present, 311. 

Washington, George (President), 94, 
118, 124, 292, 321. 

Washington (city), government of, 
274. 

Washington (state), government in, 
407, 467. 

Water works, city ownership of, 414. 

Ways and Means, Committee on, 258, 

259. 478. 
Webster-Hayne debate, 145. 
Weights, standards of, 270. 
West Point Military Academy, 311. 
West Virginia, creation of, 275. 
Western land cessions, 84, 272. 
Whig party, the, 141, 162, 441. 
Whitten, Robert H., quoted, 509. 
William of Normandy, 32. 
William III, 40, 51. 
Wilson, James, 93, loi. 
Wilson, Woodrow, The State, quoted, 

19-20, 209, 370. 
Witenagemote, 32. 
Woman suffrage, 188, 426. 
Worcester v. Georgia, 144. 
World State, the, 7. 
Writs of assistance, 71. 
Wyoming, igovernment in, 289, 425, 

427. 

X. Y. Z. Mission. 124. 
Yeardley, Governor, 47. 



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